Liberty Mercian Ltd v Cuddy Civil Engineering Ltd & Anor

Liberty Mercian Ltd v Cuddy Civil Engineering Ltd & Anor

Damages are not an adequate remedy for the non-provision of the performance bond and warranties, particularly as the defendant company has no assets and the warranties benefit a third party. The defendant has not established impossibility on the evidence. Therefore, the court orders the defendant to use its best endeavours to obtain the performance bond and warranties, reserving final determination pending further evidence on impossibility.

Parties
Claimant: Liberty Mercian Limited; Defendant: Cuddy Civil Engineering Limited; Defendant: Cuddy Demolition and Dismantling Limited
Jurisdiction
England and Wales
Judgment Date
19 December 2013
Procedural Posture
Civil (construction Contract Dispute) / Post Trial Judgment on Specific Performance
Outcome
Interim order for specific performance (best endeavours)
Legal Topics
Specific Performance, Performance Bond, Warranties, Remedies for Breach of Contract
Contract Law Equity Construction Law Specific Performance Performance Bond Warranties Remedies for Breach of Contract

Case Brief

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Parties

Liberty Mercian Limited

Claimant

Cuddy Civil Engineering Limited

Defendant

Cuddy Demolition and Dismantling Limited

Defendant

Procedural Posture

Civil (construction Contract Dispute) / Post Trial Judgment on Specific Performance

Legal Issues

  1. 1 Whether specific performance should be ordered for provision of a performance bond and warranties after contract termination
  2. 2 Whether damages are an adequate remedy for non-provision of performance bond and warranties
  3. 3 Whether it is impossible for the defendant to provide the performance bond and warranties

Ratio Decidendi

Damages are not an adequate remedy for the non-provision of the performance bond and warranties, particularly as the defendant company has no assets and the warranties benefit a third party. The defendant has not established impossibility on the evidence. Therefore, the court orders the defendant to use its best endeavours to obtain the performance bond and warranties, reserving final determination pending further evidence on impossibility.

Court Disposition

Interim order for specific performance (best endeavours)

Orders

  • CCEL is ordered to use its best endeavours to obtain both the performance bond and the warranties so that the matter can be reviewed at a further hearing.