BUCKINGHAM GROUP CONTRACTING LIMITED v PEEL L&P INVESTMENTS AND PROPERTY LIMITED

Contractual provisions are not void for uncertainty merely because they contain drafting infelicities, inconsistent dates or duplicated alternatives. The court should construe the agreement as a whole and adopt an interpretation that gives effect to the parties’ apparent intention where that interpretation is sufficiently clear and safe.

A mistake may be corrected by construction only where the mistake and the required correction are both clear. A liquidated damages cap expressed as applying to maximum liquidated damages does not, without sufficiently broad language, operate as a cap on general damages. Liquidated damages provisions and an associated cap may stand or fall together where they form one scheme.

The claimant contractor sought declarations concerning liquidated damages under a JCT Design and Build Contract 2016 amended by bespoke provisions. The contract contained a milestone-based liquidated damages regime, two sets of rates in the schedule, differing contract sum figures and provisions concerning partial possession.

The claimant argued that the liquidated damages provisions were void for uncertainty or unenforceable and that the cap on liquidated damages also capped any liability for general damages for delay. The defendant contended that the provisions could be construed coherently and that the cap applied only to liquidated damages.

The central issues were whether the contractual scheme was sufficiently certain and workable, and whether the stated cap extended to general damages.

1. The liquidated damages provisions were certain and enforceable. The court construed the contract as a whole and applied the principle that it should strive to give effect to an agreed provision where a sensible meaning can safely be found. The bespoke milestone regime in clause 2.29A was intended to operate as the sole regime for liquidated damages, notwithstanding the retention of clause 2.29. Practical completion for milestone 7 therefore attracted liquidated damages from 30 November 2018. The earlier date of 1 October 2018 had a different function under clause 2.29A.3.
2. The right-hand BAFO columns in Schedule 10 contained the applicable rates. The references to a proposal were explained by the contractual history and the copying of the earlier proposal into the executed contract. The agreed Contract Sum Analysis confirmed that the later rates and weekly cap formed part of the bargain. The applicable amounts were weekly lump sums, recoverable pro rata for part of a week.
3. The partial-possession provisions did not invalidate the milestone regime. The contract expressly stated that sections did not apply, and the milestone descriptions did not create sections or transfer possession of defined parts of the works. Clause 2.34 was directed to the ineffective whole-works regime in clause 2.29 and did not reduce the milestone damages under clause 2.29A. The absence of a reduction mechanism therefore did not make the operative regime uncertain.
4. The waiver clause was irrelevant to uncertainty. A contractual waiver could not rescue provisions which were otherwise void for uncertainty, although that issue did not arise because the provisions were held enforceable.
5. The cap of £1,928,253.77 was a cap on maximum liquidated damages only. Following the approach in Eco World, it was possible in principle for a liquidated damages provision to operate separately as a general limitation clause, but that depended on the language of the particular contract. Here, the wording, location and structure of Schedule 10 confined the cap to liquidated damages. There was no cap on general damages for delay.

First-instance Part 8 proceedings in the High Court (Technology and Construction Court). The judgment records no earlier appellate decision.