Onstruction contract law and dispute resolution
I am looking for model answers for the following 4 exam questions. All relate to construction contract law and dispute resolution. In the exam I will be supplied with a list of cases that I will supply, and a copy of the JCT Standard Building Contract 2005 With Quantities (SBC/Q). Which I can also supply to the writer.
Answers to need to make reference to appropriate legal cases and regulations these do not necessarily need to be on the list provided, however that would be preferable where possible.
I do not need a bibliography/title page etc. Just the answer to the question. References to cases in the answers should be using the standard oxford system (as in the case list)
The Questions are:
His Honour Judge Robert Goffas judgment in British Steel Corporation v Cleveland Bridge & Engineering Co Ltd (1981) 24 BLR 94 contains the following statement:
a?Both parties confidently expected a contract to eventuate. In these circumstances, to expedite performance under that anticipated contract, one requested the other to commence the contract work, and the other complied with that requesta¦.[I]f, contrary to their expectation, no contract was entered into, then the performance of work is not referable to any contract of which the terms can be ascertained, and the law simply imposes an obligation on the party who made the request to pay a reasonable sum for such work as has been done pursuant to that request, such an obligation sounding in quasi-contract or, as we now say, in restitution.a?
Discuss the extent to which contractors who commence work on site on the basis of a letter of intent can rely on the principles described above to enable them to receive payment for works undertaken in the absence of a formal contract.
In Alfred McAlpine Capital Projects Ltd v Tilebox Ltd  EWHC 281 (TCC), Mr Justice Jackson concluded that:
a?There seem to be two strands in the authorities. In some cases judges consider whether there is an unconscionable or extravagant disproportion between the damages stipulated in the contract and the true amount of damages likely to be suffered. In other cases the courts consider whether the level of damages stipulated was reasonable. Mr Darling submits, and I accept, that these two strands can be reconciled. In my view, a pre-estimate of damages does not have to be right in order to be reasonable. There must be a substantial discrepancy between the level of damages stipulated in the contract and the level of damages which is likely to be suffered before it can be said that the agreed pre-estimate is unreasonable.a?
In the light of the authorities reviewed in the above case discuss the circumstances in which it is now possible for a contractor to successfully challenge a liquidated damages clause on the basis that it is, in reality, a penalty clause.
One of your regular clients, Maxwell Construction Ltd, entered into a contract to construct a large extension to the home of Mr and Mrs Whitworth, at a contract price of A?100,000. The contract provided for four stage payments. The contract proceeded well until the third payment was due. Mr and Mrs Whitworth refused to make that payment in view of alleged defects in the quality of the work. A dispute arose which eventually resulted in Maxwell terminating the contract and issuing proceedings against Mr and Mrs Whitworth for A?20,000 in unpaid work. Mr and Mrs Whitworth have counterclaimed for A?80,000 which they allege is the cost of undertaking remedial works. Throughout the dispute Mr and Mrs Whitworth have consistently invited Maxwell to attempt to resolve matters through mediation. Maxwell have refused to do so. They describe Mr and Mrs Whitworthas case as a?extremely flimsya? and, as they are not prepared to make any concessions to them, consider that mediation would be a?a waste of everyoneas time and moneya?.
Advise Maxwell on the appropriateness of their stance in view of the courtsa powers to award costs under Part 44 of the Civil Procedure Rules.
Retail Developments Ltd invite a preselected number of contractors to tender for the construction of a new supermarket which they plan to develop in Salford. The invitation to tender fails to include any statement to the effect that Retail Developments are not under an obligation to accept the lowest tender. However, it clearly states that tenders must be submitted to the offices of ABC Management, the project consultants, by close of business on Thursday 9th April 2009 and that any submitted after that date will not be considered. Abacus Construction Ltd and Bravo Builders Ltd each submit separate tenders for the work. Abacus submit theirs by post and this arrives one week before the deadline. Bravo submit theirs by hand to the receptionist at ABCas offices late in the afternoon of the stated deadline. ABCas offices are then closed for Easter but the tenders are considered during the following week and the decision is taken to place the contract with Abacus, subject to them undertaking further design work to enable detailed planning approval to be obtained. This decision is communicated to Abacus who immediately commence the additional design work. Bravo are informed that their tender has been unsuccessful.
Two weeks later ABCas receptionist (who was married on Easter Saturday) returns from her honeymoon and notices that she had forgotten to hand Bravoas tender to her boss. He opens it and discovers that it is the lowest tender. Bravo become aware of the mistake and bring a claim against ABC and Retail Developments for breach of contract. Shortly after Abacus complete the additional design work Retail Developments decide that the worsening economic climate makes it inadvisable to continue with the development and they cancel the project. Abacus then also bring a claim against ABC and Retail Developments in respect of the additional design work which they have undertaken.
Advise Abacus and Bravo about the strength of their respective claims in the light of the common law rules relating to the formation of contracts by tender.