WW Gear Construction Ltd v McGee Group Ltd [2010] EWHC 1460 (TCC) (21 June 2010)

WW Gear Construction Ltd v McGee Group Ltd [2010] EWHC 1460 (TCC) (21 June 2010)

Clause 4.21.1, as amended, imposes a condition precedent requiring the Contractor to submit a written, fully documented, and costed application for loss and expense within the specified time (no later than two months after it became or should have become apparent that progress was affected). Compliance with this requirement is a precondition to entitlement under Clause 4.21. The wording, though poorly drafted, is to be construed as referring to Clause 4.21 as a whole, and the application triggers the ascertainment process for loss and expense. The Contractor has no entitlement under Clause 4.21 unless the condition precedent is satisfied.

Citation
[2010] EWHC 1460 (TCC)
Parties
Claimant: WW Gear Construction Limited; Defendant: McGee Group Limited
Jurisdiction
England and Wales
Judgment Date
21 June 2010
Procedural Posture
Claim for Final Declarations (construction Contract) / Judgment After Hearing
Outcome
Declaration granted in favour of the Employer.
Legal Topics
Conditions Precedent in Construction Contracts, Interpretation of JCT Standard Form Contracts, Loss and Expense Claims, Contractual Notice Requirements
Construction Law Contract Law Conditions Precedent in Construction Contracts Interpretation of JCT Standard Form Contracts Loss and Expense Claims Contractual Notice Requirements

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Parties

WW Gear Construction Limited

Claimant

McGee Group Limited

Defendant

Procedural Posture

Claim for Final Declarations (construction Contract) / Judgment After Hearing

Legal Issues

  1. 1 Whether compliance with Clause 4.21.1 is a condition precedent to entitlement to loss and expense under Clause 4.21 of the amended JCT Trade Contract.
  2. 2 Proper construction and effect of the wording in Clause 4.21.1 regarding timely application for loss and expense.

Ratio Decidendi

Clause 4.21.1, as amended, imposes a condition precedent requiring the Contractor to submit a written, fully documented, and costed application for loss and expense within the specified time (no later than two months after it became or should have become apparent that progress was affected). Compliance with this requirement is a precondition to entitlement under Clause 4.21. The wording, though poorly drafted, is to be construed as referring to Clause 4.21 as a whole, and the application triggers the ascertainment process for loss and expense. The Contractor has no entitlement under Clause 4.21 unless the condition precedent is satisfied.

Court Disposition

Declaration granted in favour of the Employer.

Orders

  • It is declared that the Contractor was required to comply with the provisions of Clause 4.21.1 as a condition precedent to its entitlement to loss and expense under Clause 4.21.