FES LTD against HFD Construction Group Ltd (Court of Session) [2024] CSIH 37 (25 October 2024)

FES LTD against HFD Construction Group Ltd (Court of Session) [2024] CSIH 37 (25 October 2024)

Clause 4.20.1, by its clear wording 'subject to...compliance with the provisions of clause 4.21', creates a condition precedent to the contractor's entitlement to reimbursement for loss and expense. Compliance with the notice provisions is a prerequisite for recovery. There is no ambiguity in the language, and extraneous guidance or commercial common sense cannot override the plain meaning.

Citation
[2024] CSIH 37
Parties
Pursuers and Reclaimers: FES LIMITED; Defenders and Respondents: HFD CONSTRUCTION GROUP LTD
Jurisdiction
Scotland
Judgment Date
25 October 2024
Procedural Posture
Reclaiming Motion (appeal) in Commercial Action / Appeal From Commercial Judge's Dismissal
Outcome
Reclaiming motion refused; interlocutor of commercial judge adhered to.
Legal Topics
Contractual Interpretation, Condition Precedent, Notice Provisions, Loss and Expense Claims
Contract Law Construction Law Contractual Interpretation Condition Precedent Notice Provisions Loss and Expense Claims

Case Brief

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Parties

FES LIMITED

Pursuers and Reclaimers

HFD CONSTRUCTION GROUP LTD

Defenders and Respondents

Procedural Posture

Reclaiming Motion (appeal) in Commercial Action / Appeal From Commercial Judge's Dismissal

Legal Issues

  1. 1 Whether notice provisions in clause 4.21 are conditions precedent to entitlement under clause 4.20.1
  2. 2 Proper construction of standard and bespoke contract clauses

Ratio Decidendi

Clause 4.20.1, by its clear wording 'subject to...compliance with the provisions of clause 4.21', creates a condition precedent to the contractor's entitlement to reimbursement for loss and expense. Compliance with the notice provisions is a prerequisite for recovery. There is no ambiguity in the language, and extraneous guidance or commercial common sense cannot override the plain meaning.

Court Disposition

Reclaiming motion refused; interlocutor of commercial judge adhered to.

Orders

  • Action dismissed; pursuers not entitled to claim loss and expense due to non-compliance with notice provisions.