Taylor Woodrow Holdings Ltd & Anor v Barnes & Elliott Ltd [2004] EWHC 3319 (TCC) (20 December 2004)

Taylor Woodrow Holdings Ltd & Anor v Barnes & Elliott Ltd [2004] EWHC 3319 (TCC) (20 December 2004)

The contract failed to provide any mechanism for ascertaining the contents of each section, rendering the liquidated damages provision void for uncertainty and inoperable. Without certainty as to sectional works, the operation of clause 24 and proportional relief under clause 17.1.4 cannot be triggered or calculated.

Citation
[2004] EWHC 3319 (TCC)
Parties
Appellant/claimant: Taylor Woodrow Holdings Limited; Appellant/claimant: George Wimpey (Southern) Limited; Respondent/defendant: Barnes & Elliott Limited
Jurisdiction
England and Wales
Judgment Date
20 December 2004
Procedural Posture
Appeal Under Section 69(1) Arbitration Act 1996 / Judgment on Appeal From Interim Arbitral Award
Outcome
appeal dismissed
Legal Topics
Liquidated Damages, Sectional Completion, Contractual Certainty, Penalty Clauses
Construction Law Contract Law Arbitration Liquidated Damages Sectional Completion Contractual Certainty Penalty Clauses

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Parties

Taylor Woodrow Holdings Limited

Appellant/claimant

George Wimpey (Southern) Limited

Appellant/claimant

Barnes & Elliott Limited

Respondent/defendant

Procedural Posture

Appeal Under Section 69(1) Arbitration Act 1996 / Judgment on Appeal From Interim Arbitral Award

Legal Issues

  1. 1 Is the liquidated damages provision valid or void for uncertainty or inoperable?
  2. 2 Is the liquidated damages provision a genuine pre-estimate of loss and enforceable or a penalty and unenforceable?

Ratio Decidendi

The contract failed to provide any mechanism for ascertaining the contents of each section, rendering the liquidated damages provision void for uncertainty and inoperable. Without certainty as to sectional works, the operation of clause 24 and proportional relief under clause 17.1.4 cannot be triggered or calculated.

Court Disposition

appeal dismissed

Orders

  • A transcript of the judgment to be prepared and made available to the parties.
  • Applications in relation to costs and any other consequential applications to be dated from when counsel have considered the judgment.