Construction

In construction litigation, an engineer who is giving factual evidence may also proffer:

(i) statements of opinion which are reasonably related to the facts within his knowledge; and

(ii) relevant comments based upon his own experience. If a contractor (D) repudiates at a time when the employer has resolved to remove certain of D’s obligations and has already engaged another contractor to perform those obligations, the court, in assessing damages, should disregard D’s failure to perform those particular obligations. That proposition must apply both as between employer and main contractor and as between main contractor and subcontractor.

The Technology and Construction Court exists to provide a dispute resolution service to the business community and pre-eminently to the construction industry. In many cases, both parties are members of the construction industry and have a dispute about a final account and usually a cross claim for damages. The normal and sensible way of resolving such matters is for the court to decide questions of principle and for the parties then to sort out the financial consequences.

Once the court has decided questions of principle, the parties can save themselves and their shareholders many millions of pounds by instructing their advisers to agree reasonable figures for quantum. If one party is not prepared to negotiate, then the other party can protect its position by making a timely and realistic offer under Pt 36.

The court’s decision on preliminary issues should be used by both parties as a basis for sensible discussion. It should not, however, be used as a platform from which the victor on the preliminary issues launches new and ill thought out claims in order to transform its case on quantum.