International Construction Law Review

Chantal-Aimée Doerries KC; Professor Douglas Jones AO

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WALTER LILLY—A CASE FOR ALL SEASONS?

TONY DYMOND

Partner at Herbert Smith Freehills LLP

MICHAEL MENDELBLAT

Professional Support Lawyer at Herbert Smith Freehills LLP

1. Introduction

In the present adjudication-dominated climate in the UK, cases reviewing several of the major issues in construction law are rare. However, in July 2012, such a case was decided by Mr Justice Akenhead in the Technology and Construction Court: Walter Lilly and Co Ltd v. Giles Mackay and Another (No 2). 1 The judgment runs to some 200 pages and is notable for addressing many of the issues which construction lawyers puzzle over. As ever, the decision must be related back to its particular facts, but there are a number of pointers to the current climate of judicial opinion which are likely to be of significant value to practitioners and tribunals both in the UK and abroad.

The case concerned a luxury development in a fashionable part of London. The contract was entered into on a JCT Standard Form 1998 with a Designed Portion Supplement. It is noteworthy that much of the make-up of the contract sum comprised provisional sums. The date for completion was 23 January 2006, but practical completion was not achieved until 13 August 2008. The contractor claimed an extension of time to that date, together with a substantial sum in respect of loss and expense. In the event, the court granted the full extension of time sought by the contractor, together with £2.3m. in respect of loss and expense and interest of £600,000.