Cases - Whittall Builders v Chester-le-Street DC

Record details

Name

Whittall Builders v Chester-le-Street DC

Date

(1987)

Citation

40 BLR 82

Keywords

Construction claim - loss and expense claim - delay - loss of productivity - plant - maintenance of plant - depreciation of plant - use of plant elsewhere

Summary

Whittal agreed to carry out modernisation work to ninety dwellings for the council which were to be made available for the contractor's access in lots of 18 at a time. The contract was in the JCT 1963 form (July 1971 Revision). The handover of houses fell into disarray, with the result that houses were released late and in an inefficient sequence. An issue arose as to whether giving piecemeal possession of the houses was sufficient to comply with clause 21 which required the council to give Whittal possession of the site.

By November 1974, the council began to accelerate and no further problems with possession occurred. During the course of the works, the claimant had to keep resources on site in the event that possession of further houses was made available. The contractor claimed the cost of off-site overheads and profit arising from the prolonged and unproductive use of machinery and labour on site.

The Court held, following Bernard Sunley, that if evidence pointed to alternative profit-earning work being available, overheads would be recoverable.

It was held that:

• although it was unusual in a contract of the nature concerned, clause 21 was not in any way qualified and 'possession of the site' within the meaning of the clause meant possession of all ninety dwellings as well as the site office area; and
• in only giving piecemeal possession of the houses the council was in breach of contract and, in principle, Whittal was entitled to damages.

The Court awarded damages to the claimant and held that the correct way to measure unproductive work was by comparing the value of work achieved per man prior to November 1974 with the amount paid to each man thereafter (when the works were not disrupted). On the facts, it was found that one-third of the sums paid to the contractor were recoverable as inefficient labour costs.

The Court found that maintenance and depreciation costs of retaining its plant at site would be recoverable, as it was 'highly probable' that the resources could have been used elsewhere.