A summary of the law setting out the damages you can claim in the event that someone breaches their contract with you.
The note was developed by Sarah Fox, author of the 500-Word Contract. The tips and techniques from her 500-Word series of talks, workshops and contract coaching will help you create simple, ethical contracts you can read, use and understand.
Contact her by email sarah@500words.co.uk or for more information, visit her website www.500words.co.uk
An overview of the role of tort on construction projects - claims which can be brought in the civil courts against a member of the project team, and outside the provisions of a contract.
The note was developed by Sarah Fox, who helps construction specialists understand their contracts - and how they are supplemented by implied terms and tortious duties.
www.500words.co.uk
Chapter 7 – Negligence and Strict LiabilityUAF_BA330
Powerpoint from textbook Business Law - the ethical, global, and e-commerce environment to accompany BA 330 course at the University of Alaska Fairbanks.
An overview of the role of tort on construction projects - claims which can be brought in the civil courts against a member of the project team, and outside the provisions of a contract.
The note was developed by Sarah Fox, who helps construction specialists understand their contracts - and how they are supplemented by implied terms and tortious duties.
www.500words.co.uk
Chapter 7 – Negligence and Strict LiabilityUAF_BA330
Powerpoint from textbook Business Law - the ethical, global, and e-commerce environment to accompany BA 330 course at the University of Alaska Fairbanks.
Debra Grimaila | Identification of common torts (intentional and unintentional). An Introduction to the Legal Aspects of Investing and Establishing a Business in Canada.
Debra Grimaila | Identification of common torts (intentional and unintentional). An Introduction to the Legal Aspects of Investing and Establishing a Business in Canada.
Rights of the Parties and Discharge; Remedies for Breach of ContractHelpWithAssignment.com
Business law is the body of law that applies to the rights, relations, and conduct of persons and businesses engaged in commerce, merchandising, trade, and sales.It is often considered to be a branch of civil law and deals with issues of both private law and public law.
The Law of Penalties - ANZ v Andrews and beyond Laina Chan
In https://www.youtube.com/watch?v=TVVSSbLUm0g, Ian Bailey SC and Laina Chan barristers, discuss the developments in the law of penalties since ANZ v Andrews. They also consider the approach of the Supreme Court in the UK in the first of a series of Chatz with Bailey SC and Chan in Cavendish Square Holding BV v Talai El Makdessi [2015] UKSC 67. This is the powerpoint that accompanies the chatz
Negotiating investor interest in indemnity clausesAditi Duggal
Indemnity is a shield that protects investor interests in contracts including share purchase agreements or share subscription agreements. The presentation explores all safeguards that must be carefully negotiated in indemnity contracts.
Laina discussed the impact on claims of the extended statutory duty of care in the Design and Building Practitioners Act 2020 (NSW) and the recovery of damages in construction claims at the 2023 UNSW Edge Construction Law Edge.
Show Me My Money (Reisenfeld & Company v. The Network Group Inc..docxedmondpburgess27164
Show Me My Money (Reisenfeld & Company v. The Network Group Inc., p. 313)
Why does the court see this case as involving a quasi-contract as opposed to an actual contract? What other case law does the court rely on in finding precedent/support for compensating Reisenfeld? Does this decision appear to follow the golden rule guideline set forth in Chapter 2 (pp. 27 and 28)? Describe another example of an implied-in-fact or quasi-contract that you have experienced or is mentioned in the text.
Note: please read all the information correctly before you begin the assignment I have also copy and paste pages 27 and 28 that you would need to complete the assignment.
CASE
13-3
REISENFELD & CO. v. THE NETWORK GROUP, INC.;
BUILDERS SQUARE, INC.; KMART CORP. U.S. COURT OF APPEALS FOR THE SIXTH CIRCUIT 277 F.3d 856 U.S. App. (2002)
Network Group (“Network”) was contracted by BSI to assist in selling or subleasing closed Kmart stores in Ohio. A few years later, Network entered into a commission agreement with Reisenfeld, a real estate broker for Dick's Clothing and Sporting Goods (“Dicks”). Dicks then subleased two stores from BSI. According to executed assignment and assumption agreements signed in November of 1994, BSI was to pay a commission to Network. Network was then responsible, pursuant to the commission agreement with Reisenfeld, to pay a commission of $1 per square foot to Reisenfeld. There was no direct agreement made between BSI and Reisenfeld.
During this time, Network's sole shareholder was defrauding BSI. This shareholder was convicted of several criminal charges stemming from his fraudulent acts. Network was ordered by the district court to disgorge any commissions received from BSI, and BSI was relieved of any duty to pay additional commissions to Network. As such, Reisenfeld never received his commission related to the Dicks sublease.
Reisenfeld sued in state court for the $160,320 in commissions he had not been paid. In addition to suing Network, Reisenfeld also named BSI as a defendant. The suit alleged, among other things, that based on a theory of quasi-contracts, BSI was jointly and severally liable for the commission.
JUDGE BOOGS: . . .
A contract implied-in-law, or “quasi-contract,” is not a true contract, but instead a liability imposed by courts in order to prevent unjust enrichment. … Under Ohio law, there are three elements for a quasi-contract claim. There must be: (1) a benefit conferred by the plaintiff upon the defendant; (2) knowledge by the defendant of the benefit; and (3) retention of the benefit by the defendant under circumstances where it would be unjust to do so without payment. …
There is no disagreement as to the first two requirements. It is clear that Reisenfeld's work as broker benefited BSI and that BSI was aware of the work Reisenfeld was doing. The disagreement rests on the third requirement—whether it would be unjust for BSI to retain the benefit it received without paying Reisenfeld for it. … U.
Relation with Insurance law as a contingent contract. Whether Insurance law is a contingent contract or not? Yes obviously it is a contingent contract.
Why use 50000 words when 500 will do? (March 2020)Sarah Fox
Considers what's wrong with UK construction contracts (complex, paper-based and adversarial) before proposing solutions to those issues: simplify content, digitise as tools, collaborate ie work on trust not terms.
Talk to CICES on 12 March 2020 by Sarah Fox of 500 Words Ltd. For more on contracts go to https://500words.co.uk/
How accessibility, simplicity and clarity can stop contracts being a burden a...Sarah Fox
Construction contracts are a burden and a bore for three principal reasons: they are complex, paper-based and adversarial.
This 30-minute Webinar focused on how we can improve accessibility with contract patterns (eg from the IACCM contract design pattern library), clarity and simplicity to build trust and help avoid disputes.
Sarah Fox is a speaker, author and innovator who wants to help construction companies safeguard their business without annoying their clients. She is interested in legal design, digitalisation and plain language as means to making user-friendly contracts available to 1m SMEs and micro-enterprises in UK construction.
For more about Sarah go to www.500words.co.uk.
This talk was for IACCM Ask the Expert series and considered the UK perspective. The recording is available to members at https://www.iaccm.com/.
A presentation (webinar) based on 5 steps to creating effective contracts:
1. Decide a contract is important
2. Avoid contract myths
3. Review STAR content
4. Delete jargon
5. Keep it simple
The sample contracts were provided by a client working on international process plant projects as a consultant but have been anonymised. For more information or to learn how to create your own STAR review, see Sarah's blog at www.500words.co.uk/blog
Presentation to the Institute of Demolition Engineers' conference in March 2019 by Sarah Fox of 500 Words Ltd on managing risks and changes under the NEC4 ECC contract.
For more information on using contracts to safeguard your business without annoying your clients, go to www.500words.co.uk/blog.
From Captive Cult to Culture Change: Sarah FoxSarah Fox
First in a series of talks hosted by Hurley Palmer Flatt on 8 October 2018 discussing whether the rise of digital engineering or digital construction requires the demise of BIM.
Sarah Fox, 500 Words Ltd, talked about the difference between cult (rules imposed by a leader) and culture (rules agreed by and changed by the group), the challenges to digital construction (technology, language and conduct), the importance of cultivating the skills to embrace those innovations.
Images by Sarah Fox, Hurley Palmer Flatt, NBS National BIM Survey and Unsplash.
For more resources go to Sarah's blog http://500words.co.uk/blog/, find B1M top 5 tips for digital construction https://www.theb1m.com/ or joint Women in BIM http://womeninbim.net/
If you are in the UK and need to check that you will comply with the General Data Protection Regulations when they come into force in May 2018, this checklist might help. Developed for use in my own business it is shared without liability. Please use it wisely to start the process of complying.
For more information on making your processes and your legal documents simple, especially if you are in the UK construction industry, go to http://500words.co.uk/
Ten great quotes from Bryan A Garner's Elements of Legal Style (used with permission) to help you improve your legal writing. Plain Language is critical under legislation in US and South Africa as well as the Consumer Rights Act 2015 in UK and EU equivalents. But it is good practice for all legal writing.
You can ignore grammar rules & write normally. But you should focus on substance (say something important) and be direct rather than rely on weasel words. The key is to use clarity to select the best words to convince your reader - whether a judge, member of the pubic or businesswoman.
Even though you are a lawyer, you can rely on emotion, colour and verve to create simple straightforward stories.
But only if you edit ruthlessly.
For more information read Bryan A Garner's Elements of Legal Style, Joseph Kimble's Writing for Dollars Writing to Please, Martin Cutt's Oxford Guide to Plain English. and to learn about effective writing for your profession ask about our courses www.500words.co.uk
Top 5 Methods for Resolving UK Construction DisputesSarah Fox
According to the Arcadis Global Disputes Survey 2016, the average value of a construction dispute is near $46m and it takes over 16 months to resolve. This guide looks at your
five main options to resolve a dispute in the UK construction industry. It compares litigation (court proceedings), arbitration, adjudication, negotiation and mediation.
The author is Sarah Fox 500 Words Ltd and you can get regular tips for construction contracts to help you avoid disputes and the need for dispute resolution methods in her fortnightly tips sheet http://just500words.co.uk/signup.
In this presentation for the 'Working wit the Enemy' session at the Construction Industry Summit 2016, Sarah Fox discussed the role of trust in contracts. Her themes were:
- how we currently have read extensive contracts which is like searching for a four-leaf clover
- importance of user experience with contracts
- current focus on small print not a shared objective eg Trebor v ADT the popcorn case
- how contracts should and can help us avoid disputes eg Arcadis Global Disputes Surveys
- whether trust comes before simpler contracts or vice versa (chicken or egg)
- how contracts including money should be built on trust
For more tips sign up to her fortnightly tips sheet http://just500words.co.uk/signup
Creating Smart(er) Construction ContractsSarah Fox
At Architex 2016, Sarah Fox spoke about smart contracts in construction covering:
- contracts are tools to help companies do business
- how construction contracts have developed in the last 5,000 years
- the development of contracts from paper to electronic to digital to smart to intelligent
- how the construction industry compares to banking which had standardised money less than 2500 years ago and is now using digital and smart money eg bitcoin
- how trust is critical to both banking ("I promise to pay the bearer on demand") and construction
- what we need before we can move to smart contracts ie simplicity in contracts and contracting
Sarah referred to these formats for construction contracts:
Paper = hard copy. First produced under sanction of RIBA. First JCT in 1931.
Electronic = editable online document (JCT Digital launched in 2006)
Digital = contract completion, execution and archiving on trusted digital platform (eg Contract Express, owned since 2015 by Thomson Reuters)
Smart = contract creation, execution and operation using logic systems
Intelligent = contracts & works documents all smart; eg multi-party payments made remotely once conditions met
For more about smart contracts see Sarah's blog at http://500words.co.uk/smart-contracts/.
A major cause of contract disputes is failing to read, understand or use your contract. This can be resolved at the drafting stage by writing effective (not defective) contracts.
These 8 tips will help you build trust, create contracts that work for your business, and avoid disputes. The blog that accompanies these slides is at http://500words.co.uk/8-habits-defective-contracts.
Sarah Fox simplifies contract processes and contracts to help you avoid disputes and build trust. Her blog is at http://www.500words.co.uk/blog
Sarah Fox talk to Clarity UK (clear language for lawyers) on adopting simpler contracts, instead of the complex, adversarial and long standard forms currently in use.
Sarah is an advocate of plain language and simplicity in contracts, particularly her specialist area of construction contracts.
For more information contact Sarah via http://500words.co.uk/contact-2/
Sarah Fox talks about how trust is more important than terms in her keynote. "One of the most engaging, thought-provoking and fun sessions I've attended". Learn how simple contracts can help not hinder business.
Guide for Construction Contract AdministratorsSarah Fox
An overview of the two main roles of a contract administrator on a generic construction project. The Contract Administrator acts as both agent of the employer and as decision-maker for critical certificates.
This notes sets out some of the questions to ask, case law to understand and tips for avoiding disputes arising from the administration of a contract.
Prepared by Sarah Fox, 500 Words Ltd, who lectured final year students at Salford University to help them become better contract administrators.
www.500words.co.uk
This note considers whether a contract term can exclude all liability for latent defects and limit liability to defect repair or replacement. The clause is based on clause 36.9 from MF/1, the Model Form of conditions for electrical, electronic and mechanical plant from IMechE/IET.
The relevant cases are British Fermentation Products v Compair Reavell [1999] 2 All ER (Comm) 389 and in BHP Petroleum v British Steel [2000]2 All ER (Comm) 133.
The note was prepared by Sarah fox, 500 Words Ltd. She has reviewed, adapted, advised and trained on the MF/1 form of contract.
www.500words.co.uk
Using the poem 'Solomon Grundy' this slideshare was designed to showcase the UK Construction Industry.
Because construction matters.
Developed by Sarah Fox, www.500words.co.uk a specialist in construction contracts
10 Essentials For An Effective Construction ContractSarah Fox
An overview of the 10 aspects every contract for a construction works package (however large or small) needs to include to make it an effective tool.
These 10 essentials are the foundation to the 500-Word Contract (TM), developed as a basis for construction contracts in England/Wales. They are also a checklist for your own terms and conditions.
For more information go to www.500words.co.uk or send Sarah an email sarah@500words.co.uk
A note on the 2015 case of Transformers & Rectifiers v Needs which reviewed the principles for determining whose terms and conditions apply. Includes a review of the battle of the forms.
Transformers & Rectifiers Ltd v Needs Ltd [2015] EWHC 269 (TCC).
For help writing simpler contracts or understanding complex ones, including which terms might be implied into any contract, contact sarah@500words.co.uk
Do you find yourself unable to agree contract terms because of their complexity?
Are you paralysed by indecision over which elements are important?
Do you find yourself avoiding the pain of paperwork by not signing or reviewing contracts?
Do you want a quick way of sorting out if your construction contract is good to go or may cause problems later in the project?
This checklist is designed for use during the tender stage to determine whether to continue.
The checklist was developed by Sarah Fox, author of the 500-Word Contract for construction projects. If you want to know how to use 4 key elements to evaluate contracts before they are signed then 500 Words Ltd runs a 90-minute introductory workshop to help you spot the disasters waiting to happen.
For information on how we can give you the confidence to use contracts for project success, email sarah@500words.co.uk or visit www.500words.co.uk
A checklist to help facilitators and trainers remember everything they need to run a seminar, course, workshop or event. Adapt as you see fit.
Sarah Fox of 500 Words and Emma Sutton of Naked Presenting developed this list after years of running, delivering, facilitating and organising a range of learning events.
www.500words.co.uk
www.nakedpresenting.co.uk
Military Commissions details LtCol Thomas Jasper as Detailed Defense CounselThomas (Tom) Jasper
Military Commissions Trial Judiciary, Guantanamo Bay, Cuba. Notice of the Chief Defense Counsel's detailing of LtCol Thomas F. Jasper, Jr. USMC, as Detailed Defense Counsel for Abd Al Hadi Al-Iraqi on 6 August 2014 in the case of United States v. Hadi al Iraqi (10026)
How to Obtain Permanent Residency in the NetherlandsBridgeWest.eu
You can rely on our assistance if you are ready to apply for permanent residency. Find out more at: https://immigration-netherlands.com/obtain-a-permanent-residence-permit-in-the-netherlands/.
NATURE, ORIGIN AND DEVELOPMENT OF INTERNATIONAL LAW.pptxanvithaav
These slides helps the student of international law to understand what is the nature of international law? and how international law was originated and developed?.
The slides was well structured along with the highlighted points for better understanding .
Responsibilities of the office bearers while registering multi-state cooperat...Finlaw Consultancy Pvt Ltd
Introduction-
The process of register multi-state cooperative society in India is governed by the Multi-State Co-operative Societies Act, 2002. This process requires the office bearers to undertake several crucial responsibilities to ensure compliance with legal and regulatory frameworks. The key office bearers typically include the President, Secretary, and Treasurer, along with other elected members of the managing committee. Their responsibilities encompass administrative, legal, and financial duties essential for the successful registration and operation of the society.
RIGHTS OF VICTIM EDITED PRESENTATION(SAIF JAVED).pptxOmGod1
Victims of crime have a range of rights designed to ensure their protection, support, and participation in the justice system. These rights include the right to be treated with dignity and respect, the right to be informed about the progress of their case, and the right to be heard during legal proceedings. Victims are entitled to protection from intimidation and harm, access to support services such as counseling and medical care, and the right to restitution from the offender. Additionally, many jurisdictions provide victims with the right to participate in parole hearings and the right to privacy to protect their personal information from public disclosure. These rights aim to acknowledge the impact of crime on victims and to provide them with the necessary resources and involvement in the judicial process.
Car Accident Injury Do I Have a Case....Knowyourright
Every year, thousands of Minnesotans are injured in car accidents. These injuries can be severe – even life-changing. Under Minnesota law, you can pursue compensation through a personal injury lawsuit.
A "File Trademark" is a legal term referring to the registration of a unique symbol, logo, or name used to identify and distinguish products or services. This process provides legal protection, granting exclusive rights to the trademark owner, and helps prevent unauthorized use by competitors.
Visit Now: https://www.tumblr.com/trademark-quick/751620857551634432/ensure-legal-protection-file-your-trademark-with?source=share
In 2020, the Ministry of Home Affairs established a committee led by Prof. (Dr.) Ranbir Singh, former Vice Chancellor of National Law University (NLU), Delhi. This committee was tasked with reviewing the three codes of criminal law. The primary objective of the committee was to propose comprehensive reforms to the country’s criminal laws in a manner that is both principled and effective.
The committee’s focus was on ensuring the safety and security of individuals, communities, and the nation as a whole. Throughout its deliberations, the committee aimed to uphold constitutional values such as justice, dignity, and the intrinsic value of each individual. Their goal was to recommend amendments to the criminal laws that align with these values and priorities.
Subsequently, in February, the committee successfully submitted its recommendations regarding amendments to the criminal law. These recommendations are intended to serve as a foundation for enhancing the current legal framework, promoting safety and security, and upholding the constitutional principles of justice, dignity, and the inherent worth of every individual.
WINDING UP of COMPANY, Modes of DissolutionKHURRAMWALI
Winding up, also known as liquidation, refers to the legal and financial process of dissolving a company. It involves ceasing operations, selling assets, settling debts, and ultimately removing the company from the official business registry.
Here's a breakdown of the key aspects of winding up:
Reasons for Winding Up:
Insolvency: This is the most common reason, where the company cannot pay its debts. Creditors may initiate a compulsory winding up to recover their dues.
Voluntary Closure: The owners may decide to close the company due to reasons like reaching business goals, facing losses, or merging with another company.
Deadlock: If shareholders or directors cannot agree on how to run the company, a court may order a winding up.
Types of Winding Up:
Voluntary Winding Up: This is initiated by the company's shareholders through a resolution passed by a majority vote. There are two main types:
Members' Voluntary Winding Up: The company is solvent (has enough assets to pay off its debts) and shareholders will receive any remaining assets after debts are settled.
Creditors' Voluntary Winding Up: The company is insolvent and creditors will be prioritized in receiving payment from the sale of assets.
Compulsory Winding Up: This is initiated by a court order, typically at the request of creditors, government agencies, or even by the company itself if it's insolvent.
Process of Winding Up:
Appointment of Liquidator: A qualified professional is appointed to oversee the winding-up process. They are responsible for selling assets, paying off debts, and distributing any remaining funds.
Cease Trading: The company stops its regular business operations.
Notification of Creditors: Creditors are informed about the winding up and invited to submit their claims.
Sale of Assets: The company's assets are sold to generate cash to pay off creditors.
Payment of Debts: Creditors are paid according to a set order of priority, with secured creditors receiving payment before unsecured creditors.
Distribution to Shareholders: If there are any remaining funds after all debts are settled, they are distributed to shareholders according to their ownership stake.
Dissolution: Once all claims are settled and distributions made, the company is officially dissolved and removed from the business register.
Impact of Winding Up:
Employees: Employees will likely lose their jobs during the winding-up process.
Creditors: Creditors may not recover their debts in full, especially if the company is insolvent.
Shareholders: Shareholders may not receive any payout if the company's debts exceed its assets.
Winding up is a complex legal and financial process that can have significant consequences for all parties involved. It's important to seek professional legal and financial advice when considering winding up a company.
What Can You Claim for Breach of A Construction Contract?
1. THE LAW OF DAMAGES FOR CONSTRUCTION CONTRACTS
Carillion JM Ltd v Phi Group Ltd [2011] EWHC 1379 (TCC)
At paragraph 168 of his judgment, Akenhead J quoted this summary of the law of damages
(‘so far as relevant to that case’) from AXA Insurance UK PLC v Cunningham Lindsey United
Kingdom [2007] EWHC 3023 (TCC)
"256.
The essential object of an award of damages is to put the innocent claimant "in the
same position as he would have been in if he had not sustained the wrong for which
he is now getting compensation or reparation" (see Livingstone v Rawyards Coal
Company (1880 5 App.Cas 25, 39).
257.
Damages for breach of contract "should be such as may fairly and reasonably be
considered either (1) arising naturally, i.e. according to the usual course of things
from such breach of contract itself, or (2) such as may reasonably be supposed to
have been in the contemplation of both parties at the time they made the contract,
as the probable result of a breach of it" (Hadley v Baxendale (1854) 9 Ex 341, 354). I
am only concerned in this case with first limb of Hadley v Baxendale damages. None
of the heads of loss in this case are challenged, properly or at all, on the grounds
that they fall outside the first limb of Hadley v Baxendale. Whether the quantum
and the requisite causation are proved, however, another matter.
258.
The question of reasonableness of the loss or damage claimed legitimately arises in
a number of different ways. As confirmed in Hadley v Baxendale (in the words
quoted above) it is necessary that the damages must "fairly and reasonably be
considered" as arising from the breach. That reasonableness is itself an essential
element in establishing damages was confirmed in the House of Lords case of
Ruxley Electronics Ltd v Forsyth [1995] [UKHL 8]. The judgments of their Lordships
contain many references to the importance of reasonableness in selecting the
appropriate measure of damages and determining the extent and measure of
damages. For instance Lord Lloyd of Berwick says at page 368A and 370A:
"Once again one finds the court emphasising the central importance of
reasonableness in selecting the appropriate measure of damages … So I
cannot accept that reasonableness is confined to the doctrine of mitigation.
It has a wider impact …"
Thus, I conclude that it is generally incumbent upon an innocent claimant entitled to
damages to demonstrate not only that the loss was within one of the Hadley v
Baxendale limbs but also that it is reasonable to recover damages of the type and
extent claimed.
259.
Reasonableness as a separate element is to be distinguished from the "duty" to
mitigate. That is described in the well-known speech of Viscount Haldane LC in
British Westinghouse Co v Underground Railway [1912] AC 673, 689:
"The fundamental basis is thus compensation for pecuniary loss naturally
claimed from the breach; but this first principle is qualified by a second,
which imposes on a claimant the duty of taking all reasonable steps to
2. mitigate the loss consequent on the breach, and debars him from claiming
any part of the damage which is due to his neglect to take such steps."
The onus of establishing a failure to mitigate is upon the defendant. It is clear from
numerous authorities that the duty to mitigate does not impose a heavy onus on a
claimant. In almost every case, provided that the claimant can be shown not to have
acted unreasonably in all the circumstances, to that extent it will not have failed to
mitigate its loss.
260.
The duty to mitigate is, generally, not a contractual or statutory duty. For instance
Pearson LJ in Darbishire v Warran [1963] 1 WLR 1067 properly said:
"It is important to appreciate the true nature of the so-called 'duty to
mitigate the loss' or 'duty to minimise the damage'. The claimant is not
under any contractual obligation to adopt the cheaper method: if he wishes
to adopt the more expensive method, he is at liberty to do so and by doing
so he commits no wrong against the defendant or anyone else. The true
meaning is that the claimant is not entitled to charge the defendant by way
of damages with any greater sum than that which he reasonably needs to
expend for the purpose of making good the loss. In short, he is fully entitled
to be as extravagant as he pleases but not at the expense of the defendant."
That dictum has some particular relevance here where, on any count, as it
effectively accepts, AXA spent considerably more in resolving the problems at
Orchard Farm than was necessary.
261.
The costs of and occasioned by reinstatement in a construction context are often,
albeit not invariably, the proper measure of damages where there has been
defective or negligence performance, particularly where the defaults have caused
defects or deficiencies in building (East Ham Corpn v Bernard Sunley & Sons [1966]
AC 406). However "where reinstatement is the appropriate basis for the assessment
of damages, it must be both reasonable to reinstate and the amount awarded must
be objectively fair as between the claimants and the defendants" (per Clarke LJ in
the Maersk Colombo [2001] 2 Lloyd's Rep 275, 281).
262.
In considering reasonableness, both in the context of mitigation and reasonableness
as a basis for establishing damages, the court will not be unsympathetic to the
predicament in which an innocent claimant is put by the breaches of contract of the
defendant. As Lord MacMillan said in Banco De Portugal v Waterlow & Sons Ltd
[1932] AC 452 at page 506:
"Where the sufferer from a breach of contact finds himself in consequence of
that breach placed in the position of embarrassment the measures which he
may be driven to adopt in order to extricate himself ought not to be weighed
in nice scales at the instance of the party whose breach of contract has
occasioned the difficulty. It is often easy after an emergency has passed to
criticise the steps which have been taken to meet it, but such criticism does
not come well from those who themselves created the emergency. The law is
satisfied if the party placed in a difficult situation by reason of the breach of
a duty owed to him has acted reasonably in the adoption of remedial
measures, and he will not be held disentitled to recover the costs of such
3. measures merely because the party in breach can suggest that other
measures less burdensome to him might have been taken.""
Akenhead J went on to state:
“169
The broad propositions that can be distilled from these cases are:
(a)
Damages are awarded to compensate an innocent claimant so as to put it in
the same position as it would have been in if he had not sustained the
wrong.
(b)
Damages for breach of contract must fall within one or other of the two
limbs of Hadley v Baxendale.
(c)
The innocent claimant must establish that it is reasonable to recover
damages of the type and extent claimed.
(d)
The burden of proving a failure to mitigate is on the unsuccessful defendant.
If the innocent claimant has not acted unreasonably in all the circumstances,
particularly examined at the time, there will be no failure to mitigate.
(e)
In considering reasonableness or unreasonableness both in the context of a
failure to mitigate as well as the reasonableness of the type and extent of
damages claim, the Court will not be unsympathetic to the predicament in
which the innocent claimant finds itself as a result of the unsuccessful
defendant's breaches of contract.”
Further Resources for Construction Professionals:
Designing Buildings Wiki on Expectation Interest and Reliance Expenditure
Atkinson Law Resources on Delay & Disruption
The Author
Sarah Fox of Enjoy Legal Learning wrote this note. She is a speaker and trainer who cuts
through the complexities of construction law. She provides confidence to construction
companies to read, use and understand their contracts. She is also author of the 500 Word
Contract™.
To find out how Sarah can help you love your terms and conditions, contact her on: 07767
342747 or by email: sarah@enjoylegallearning.co.uk