case · [2012] EWHC 1773 (TCC)
Where the time went, and what it cost.
Three houses in London SW5, a JCT contract let before the design was done, and a four-year argument over time and money. The film follows the judgment from the contractor's notices to the sums the court allowed.
140 seconds · silent · captionedRead the judgment
When your project records are on the CIG, what this court took four years and 32,000 pages to piece together is already in order, month by month.
Transcript
- 0:00In July 2004 the contractor Walter Lilly started one of three luxury houses at 3 Boltons Place, London, for the employer DMW Developments, under a JCT 1998 contract with some contractor's design: £5.28M for this house, possession 12 July 2004, due 23 January 2006.
- 0:07It went wrong early: the design was nowhere near completed when the contractor was appointed, and every part of the building work was a provisional sum, priced during the job. By August 2005 the architect wrote that the distance between client aspirations and cost had never been so far apart; the court later called it a continuing problem of considerable delays in securing design decisions.
- 0:20The house took 208 weeks against the 80 planned: 128 weeks late, with practical completion on 7 July 2008 as the court later found it.
- 0:26From 16 February 2007 the employer deducted delay damages. The court gave the contractor every week of it — the full extension to practical completion — and set the damages at zero pounds. Why?
- 0:38Finding the answer took four years from completion: over 32,000 pages before the court, with a significant amount of duplication and irrelevant material; 9 factual witnesses and 8 experts; a 16-day trial; 33 expert bundles; between them the parties spent £9 to £10 million in costs — obviously disproportionate to what is in dispute.
- 0:50On Akil CIG, the Construction Intelligence Graph, the case is one graph laid out by date: every letter between the parties, every event, and the court's findings above them. After February 2007 there was no programme of the outstanding work either side's expert would use, so the court went month by month, from the completion date then standing: 16 February 2007.
- 1:01The court went month by month, and every month gave the same kind of finding: the leather in the library to July 2007, the pool ceiling lighting in August, the Stingray doors to November, the Light Wall to February 2008, and at the end instructions that never effectively came. Every row was the employer's risk under the contract, and the completion date stepped right, month after month, to 7 July 2008.
- 1:14The employer blamed the plasterwork, the lift and snagging. The court found none of them delayed completion — and said it straight: some of those complaints were the contractor's own responsibility, they just had no impact on the overall delay. On these facts concurrent delay never arose — the only overlapping causes were the employer's own. And the rule: where two causes delay the work and one is a Relevant Event, an event that earns more time under the contract, the extension is full, with no apportionment.
- 1:28Ask the graph the question a claims person asks: why did completion move to 21 October 2007? The thread starts with the contractor's notice of 8 March 2007 — no leather instruction had been given to date — raised under Clause 25, the extension-of-time clause.
- 1:36The thread is short: the instruction for the leather lobby comes in June, and the court puts completion at 12 October 2007. Then a duct has to run behind the library shelving — July — and completion moves again, to 21 October 2007. One thread, every step with its paragraph, every edge in the graph.
- 1:46The record holds 316 letters, 72 of them carrying notices. By the end of June 2008 the contractor counted 234 notices sent and 196 never answered — its own count, in its own complaint, not a court finding.
- 1:53The contract was not casual about this: the architect shall fix a fair and reasonable later date, within twelve weeks where reasonably practicable — and as the court said, this is not an optional exercise. The twelve-week review due after the 13 August 2008 completion certificate was never done.
- 2:03The money follows the decision. The damages claim was defeated by the extension the court granted — delay damages at zero. Prolongation, the cost of staying on site longer, was claimed at £1,429,177 against an offer of £68,340.80, and £860,714 was allowed under Clause 26. On the whole account, valued at £11,135,076, the employer had paid £8,768,360; with £36,050 off for defects and nothing for delay, it still owed the contractor £2,330,666.
- 2:15Walter Lilly, Technology and Construction Court, 2012. The record, on the graph, at akil.build.
The case
The case on one sheet
- Scheme
- Three adjacent houses in London SW5; the dispute concerns one of them
- ¶4 · ¶17
- Contract
- JCT Standard Form 1998, Private Without Quantities, with Contractor's Designed Portion
- ¶102
- Contract sum
- £5.28M for the house in dispute
- ¶17
- Liquidated damages
- £2,150 to £6,400 a day, graded
- ¶11
- Parties
- Walter Lilly & Co (contractor) · DMW Developments (employer) · BLDA (architect and contract administrator) · Gardiner & Theobald (quantity surveyor)
- ¶1 · ¶6
- The start
- Design work was nowhere near complete when the contractor was appointed, and all the building works were provisional sums
- ¶1 · ¶13
Decided
What the court decided
Time · clause 25
“where delay is caused by two or more effective causes, one of which entitles the Contractor to an extension of time as being a Relevant Event, the Contractor is entitled to a full extension of time”¶370
Two causes, one of them a Relevant Event: the contractor gets the full extension. No apportionment.
The court found a full extension to practical completion, 7 July 2008. ¶459
Money
Loss and expense · clause 26¶461 · ¶539
- Claimed by the contractor
- £1,429,177
- Offered by the employer
- £68,340.80
- Allowed by the court
- £860,714
Liquidated damages¶655 · ¶658
- Withheld for delay and defects
- £854,596
- Liquidated damages allowed
- £0
Net due to the contractor
before interest · ¶658
£2,330,666
The graph
The graph behind the film
The film's graph scenes come from the judgment read as a graph, each item tied to the paragraph it came from. We show the live graph in a walkthrough.
- Letters and notices
- Events on site
- Claims
- Contract clauses
- The court's decisions
Walter Lilly, [2012] EWHC 1773 (TCC), on Find Case Law. Contains information licensed under the Open Justice Licence v2.0.
Figures are the judgment's, with paragraph references; derived figures are marked. People are not named.