Taylor Woodrow Holdings Ltd & Anor v Barnes & Elliott Ltd

Taylor Woodrow Holdings Ltd & Anor v Barnes & Elliott Ltd

The liquidated damages provision was void for uncertainty and incapable of operation because the contract failed to provide any means of ascertaining what was contained in any section, making it impossible to trigger or calculate liquidated damages or proportional relief for partial possession.

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) of the Arbitration Act 1996 / Judgment on Appeal From Interim Arbitral Award
Outcome
appeal dismissed
Legal Topics
Liquidated Damages, Contractual Certainty, Sectional Completion, Penalty Clauses
Construction Law Arbitration Liquidated Damages Contractual Certainty Sectional Completion 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) of the Arbitration Act 1996 / Judgment on Appeal From Interim Arbitral Award

Legal Issues

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

Ratio Decidendi

The liquidated damages provision was void for uncertainty and incapable of operation because the contract failed to provide any means of ascertaining what was contained in any section, making it impossible to trigger or calculate liquidated damages or proportional relief for partial possession.

Court Disposition

appeal dismissed

Orders

  • A transcript of the judgment to be 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.