As many of us contemplated a return to normality this year, the Supreme Court followed suit. It was concerned, in Triple Point vs PTT, with a (software) contract that was terminated before completion was achieved, with work much delayed. It reversed the Court of Appeal ruling that after termination the delay liquidated damages provision did not apply, even to pre-termination delay. We have returned to where we thought we were. Absent contrary wording, liquidated damages accrue for pre‑termination delay, while general damages cover post-termination delay.

Liquidated damages were also considered by the Technology and Construction Court (TCC) in Eco World vs Dobler. It held that a liquidated damages clause was valid and enforceable despite its non-provision for any reduction following partial possession of the works. The TCC added that if the clause had been void or unenforceable, the limit of 7% of the contract sum would still have capped the otherwise payable general damages.

A contractual cap of £500,000 on “all claims” was at issue in Mott vs Trant. The TCC held that there was no presumption against such clauses applying to deliberate and repudiatory breaches of contract. Exclusion and limitation clauses should be construed by way of the normal principles of contractual interpretation.

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