Ascon Contracting Ltd v Alfred McAlpine Construction Isle of Man Ltd

Citation: 66 Con LR 119; 16 Const. L.J. 216 (TCC)

Nature of case:

McAlpine was the main contractor on a project in the Isle of Man, and Ascon was the reinforced concrete subcontractor.  Due to the location of the site, at times of high tide water was entering the excavation.  Ascon claimed for an extension of time in respect of the delay caused by the ingress of water.  Ascon further claimed for an extension of time in respect of the delay in making available to Ascon the foundations of the lift pit on the project.  Ascon claimed extra payment in respect of both delays, and McAlpine counterclaimed for their exposure to liquidated damages, resulting from delay in practical completion alleged to be attributable to Ascon.

HHJ John Hicks QC ruled in Ascon’s favour on both the claim and the counterclaim:

  1. Preventing the ingress of water was McAlpine’s responsibility, and Ascon could have expected a reasonably dry site during working hours.  The evidence established a breach of contract by McAlpine, but the evidence led by Ascon as to the effect of the ingress of water was seriously defective.  In those circumstances an extension of 6 days was awarded.
  2. The delay in making the lift pit available was inherently likely to have caused delay to Ascon, but again their evidence of its effect was defective; an extension of 8 days was awarded.
  3. As to the claims for extra money, while there was some margin for error in Ascon’s internal figures for their loss resulting from delay, in modern construction litigation it was unheard of to require strict proof of figures.  Ascon’s figures were acceptable as evidence of their loss.
  4. As to McAlpine’s counterclaim, the evidence did not support the attribution of more than 1.5 weeks of the delay to Ascon. In any event, it was not established that any of the liquidated damages payable by McAlpine were attributable to Ascon

Counsel

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