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ARTICLE · 01 NOVEMBER 2021

Liquidated Damages And Partial Possession

Shepherd and Wedderburn
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The Technology and Construction Court (TCC) in Eco World - Ballymore Embassy Gardens Company Ltd v Dobler UK Ltd [2021] EWHC 2207 (TCC) enforced a liquidated damages (LDs) clause that did not allow for a proportionate reduction following partial possession of sections of a development.

United KingdomReal Estate and Construction
Iain Drummond
Iain Drummond
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The Technology and Construction Court (TCC) in Eco World - Ballymore Embassy Gardens Company Ltd v Dobler UK Ltd [2021] EWHC 2207 (TCC) enforced a liquidated damages (LDs) clause that did not allow for a proportionate reduction following partial possession of sections of a development. The TCC rejected that the clause was a penalty, and considered the argument that an invalid liquidated damages clause could still operate as a valid cap of liability.

Background

Eco World (Eco) employed Dobler (UK) Ltd (Dobler) to design, supply and install façade and glazing works at Nine Elms, London (the Contract). The Contract was based on the JCT 2011 Construction Management Trade Contract (with amendments). Dobler was engaged on three "blocks" of the residential development (Blocks A, B and C), together referred to as Building A04. The revised completion date was 30 April 2018. There was no sectional completion in the Contract, but there was a provision regarding take-over or

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