Issue |
Ruling |
1 |
GOG, the Defendant, lawfully terminated the Contract by notice dated 28 July 2011, alternatively by notice dated 4 August 2011, with the termination occurring 14 days later. |
1(a)(i) |
The Engineer was entitled to issue the Clause 15.1 Notice to Correct on 16 May 2011 in relation to Clause 8 breaches relating to (i) suspending tunnel excavation work on 20 December 2010, (ii) suspending cutting and repairing outer diaphragm walls on 21 January 2011, (iii) failing to start underwater trenching and ducting work for the Western SALS, (iv) failing to provide acceptable details of methods which OHL proposed to adopt for tunnel excavation work and (v) failing to proceed with dewatering with due expedition. |
1(a)(ii) |
The times specified for all of these five items were reasonable except for that relating to the Western SALS work |
1(a)(iii) |
The Defendant was entitled to rely on those matters set out in the Engineer's 16 May 2011 Notice as listed in (i), (ii), (iv) and (v) in answer to Issue 1(a)(i) above. Such failures had not materially been overtaken by events or otherwise remedied. The Defendant's actions on 1 June 2011 did not in fact prevent the Claimant from remedying its defaults. |
1(a)(iv) |
The Engineer was entitled to issue Instruction No 20 dated 16 June 2011 in the terms set out therein and to instruct that the relevant works be carried out within the period specified by him. |
1(a)(v) |
The Claimant was in default in the manner set out by the Engineer in its 5 July 2011 Notice. |
1(a)(vi) |
The time specified for the remedying of the defect in the Engineer's 5 July 2011 clause 15.1 Notice was reasonable. |
1(b) |
The Defendant was entitled to serve a notice of termination pursuant to sub-clause 15.2(b) of the Conditions because the Claimant had plainly demonstrated an intention not to continue with the performance of its obligations under the Contract, for the reasons set out above. |
1(c) |
As the Claimant was entitled only to one day's extension of time as at 28 July 2011, such limited entitlement did not mean that the Defendant was no longer entitled to serve a notice of termination pursuant to clause 15.2(b) of the Conditions. |
1(d) |
The Defendant was entitled to serve a notice of termination pursuant to sub-clause 15.2(c)(i) of the Conditions for the reason set out above. |
1(d)(i) |
The Claimant had failed, by 28 July 2011 and from 2009 onwards to proceed with the Works with due expedition and without delay |
1(d)(ii) |
As the Claimant had failed to proceed with the design and execution of the Works with due expedition and without delay and by 28 July 2011 had culpably failed to complete by the contractual Time for Completion, such failings were an important part of the failure to proceed in accordance with Clause 8.1 such as to give rise to an entitlement on the part of the Defendant to terminate the Works pursuant to clause 15.2(c)(i) of the Conditions. |
1(d)(iii) |
The Claimant had no "reasonable excuse" for such failures. |
1(e) |
The Defendant's notice of termination dated 28 July 2011 was a valid and effective notice pursuant to Clause 15.2 of the Conditions. |
1(f) |
The Contract was lawfully terminated by the Defendant on 20 August 2011 pursuant to Clause 15.2 of the conditions |
1(g)(i) |
The service of the Notice of Termination on the Claimant's site office address did not amount to a repudiation of the Contract by the Defendant. The Claimant was not entitled to elect to accept this as a repudiation on the part of the Defendant on 3 August 2011 such that the Contract was terminated on that date. |
1(g)(ii) |
The terms of the Claimant's letter dated 3 August 2011 constituted a repudiatory breach of contract on the Claimant's part, albeit it was not accepted as such by the Defendant. |
1(g)(iii) |
The Defendant's re-delivery of its Notice of Termination via courier on 4 August 2011 to the Claimant's offices in Madrid, if required at all, would have constituted effective service of a clause 15.2 notice and thereby would have entitled the Defendant to terminate the Contract pursuant to clause 15.2 of the Conditions 14 days thereafter. |
1(g)(iv) |
Given that the Defendant went down the contractual route of termination on 28 July alternatively on 4 August 2011, the Defendant was not entitled to elect to accept the Claimant's repudiatory conduct as detailed in the Notice to Terminate. |
(h) |
The service of the Notice of Termination in the terms that it was written did not amount to a repudiation of the contract (or an anticipated repudiation) by the Defendant which the Claimant accepted or was entitled on 3 August 2011 such that the Contract was terminated on that date. |
(i) |
The Claimant's conduct in the period between 3 August 2011 and 12 August 2011 when it left the Site evinced an intention no longer to be bound by the terms of the Contract and thereby amounted to a repudiatory breach of Contract albeit that the Defendant did not as such effectively accept this by its letter dated 20 August 2011. |
2 |
The parties' entitlements are governed by the terms of Clause 15 and by such other terms as are germane to establishing financial entitlements. |
2(a) |
The premise of these issues is immaterial in that the Claimant did not lawfully terminate the Contract. |
2(b) |
The Defendant is entitled to the relief provided for by clauses 15.3 and 15.4 of the Conditions. |
2(b)(iii) |
The Defendant entitled to interest as allowed for under the Contract or to the extent that the Court has a discretion pursuant thereto. |