Trollope & Colls Ltd v North West Metropolitan Regional Hospital Board
| Jurisdiction | UK Non-devolved |
| Judge | Lord Pearson,Lord Guest,Viscount Dilhorne,Lord Diplock,Lord Cross of Chelsea |
| Judgment Date | 10 April 1973 |
| Judgment citation (vLex) | [1973] UKHL J0410-2 |
| Date | 10 April 1973 |
| Court | House of Lords |
[1973] UKHL J0410-2
Lord Pearson
Lord Guest
Viscount Dilhorne
Lord Diplock
Lord Cross of Chelsea
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Trollope & Colls Limited against North West Metropolitan Regional Hospital Board, That the Committee had heard Counsel as well on Monday the 12th, as on Tuesday the 13th, Wednesday the 14th and Thursday the 15th, days of February last, upon the Petition and Appeal of Trollope & Colls Limited of Salisbury House, London Wall, London E.C.2 praying, That the matter of the Order set forth in the Schedule thereto, namely an Order of Her Majesty's Court of Appeal of the 5th of July 1972, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament might seem meet; as also upon the Case of the North West Metropolitan Regional Hospital Board, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 5th day of July 1972, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Judgment of the Honourable Mr. Justice Donaldson of the 26th day of November 1971, thereby Set Aside, be, and the same is hereby, Restored: And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellants the Costs incurred by them in the Court of Appeal, and also the Costs incurred by them in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Queen's Bench Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.
My Lords,
By a building contract dated the 23rd March, 1966, the Appellants contracted to carry out for the Respondents works of and connected with erecting and completing a District Hospital and Clinical Research Centre at Northwick Park, Wembley. The works were to be carried out in three phases—Phase I upon and subject to Conditions "A" for £6,691,878, Phase II upon and subject to Conditions "B" for £3,165,940 and Phase III upon and subject to conditions "C" for £3,382,072. The three sets of conditions were very similar, but not identical. The Respondents had an option to give to the Appellants, at any time before the date of issue of the certificate of practical completion under conditions "A", a notice to omit phase III.
The question in this appeal arose out of the provisions for the timing of phase III, which was made to depend on the timing of phase I.
In conditions "A", relating to phase I, there was clause 11 empowering the architect to issue instructions requiring or sanctioning variations, which might include the addition, omission or substitution of any work. Clause 21(1) provided that:
"On the Date for Possession stated in the appendix to these Conditions possession of the site shall be given to the Contractor who shall thereupon begin the works and regularly and diligently proceed with the same, and who shall complete the same on or before the Date for Completion stated in the said appendix subject nevertheless to the provisions for extension of time contained in clauses 23 and 33(1)(c) of these Conditions".
The date for possession stated in the appendix was the 1st February 1966, and the date for completion stated in the appendix was the 30th April, 1969. Clause 22 provided for liquidated damages to be payable if the contractor failed to complete the works by the date for completion stated in the appendix to these conditions or within any extended time fixed under clause 23 or clause 33(1)(c) and the architect certified in writing that in his opinion the same ought reasonably so to have been completed.
Clause 23 provided for the architect extending the time for completion of the works for delay caused by certain specified events, which included exceptionally inclement weather, fire damage, strikes, architect's instructions for variations under clause 11 or certain other clauses, and delay on the part of nominated sub-contractors. Clause 33(1)(c) related to war damage and is not relevant. Clause 35 was an arbitration clause.
In conditions "C", relating to phase III, clause 21(1) provided that:
"On the Date for Possession stated in the appendix to these Conditions possession of the site shall be given to the Contractor. Six months after the Date of issue of the Certificate of Practical Completion of Phase I the Contractor shall begin Phase III and shall regularly and diligently proceed with the same, and shall complete the same on or before the Date for Completion stated in the said appendix subject nevertheless to the provisions for extension of time contained in clauses 23 and 33(1)(c) of these Conditions."
The date for possession stated in the appendix was the 1st February, 1966, and the date for completion stated in the appendix was the 30th April, 1972 Clause 22 was a liquidated damages clause in the same terms as clause 22, of conditions "A". Clause 23 provided for the architect extending the time for completion of the works for delay caused by certain specified events, which did not include delay in the completion of phase I. Clause 33(1)(c) related to war damage and is not relevant.
Thus, the time for beginning work on phase III was six months after the certificate of practical completion of phase I, but the date by which work on phase III had to be completed (unless there was some extension of time under clause 23 of conditions "C") was a specified date, the 30th April, 1972. If the certificate of practical completion of phase I was issued on the specified date for completion of phase I, which was 30th April, 1969, the time for beginning work on phase III would be six months later, i.e., on the 31st October, 1969, and a period of 30th months would be available for completing phase III by the specified date, the 30th April, 1972. If, however, there was for any reason delay in reaching practical completion of phase I, the period for completing phase III would be curtailed.
Clause 27(a) of conditions "C", relating to nominated sub-contractors, included a provision that the architect should not nominate any person as a sub-contractor "… who will not enter into a sub-contract which provides ( inter alia) … (ii) That the nominated sub-contractor shall observe, perform and comply with all the provisions of this contract on the part of the Contractor to be observed, performed and complied with so far as they relate and apply to the sub-contract works or to any portion of the same … (v) that the sub-contract works shall be completed within the period … therein specified, that the Contractor shall not without the written consent of the Architect … grant any extension of time for the completion of the sub-contract works … and that the Contractor shall inform the Architect … of any representations made by the nominated sub-contractor as to the cause of any delay in the progress or completion of the sub-contract works. …"
In the event there was a delay of 59 weeks in the completion of phase I. Extensions were granted under clause 23 for a total of 47 weeks, of which 25 weeks were for variations required or sanctioned by the architect on behalf of the Respondents and 22 weeks were for causes (exceptionally inclement weather, fire damage, strikes and nominated sub-contractors' delays) which were not attributable to action of the Respondents. As to the remaining 12 weeks of delay, the architect considered that the Appellants were at fault and he refused to grant extensions, but the Appellants contended that they were not at fault and that the architect should have granted extensions. This dispute still subsists and will, or may be, submitted to arbitration, but is not a subject of the present action or the present appeal.
The effect of the 59 weeks of delay, if the express provisions of the contract are to be construed literally and if there is no implied term, is this. The specified date for the completion of phase I was the 30th April, 1969, and if there had been no delay the time for beginning phase III would have been six months after the 30th April, 1969, that is, the 31st October, 1969. But in consequence of the delay the certificate of practical completion was not issued until the 22nd June, 1970. It followed that the time for beginning phase III was six months after the 22nd June, 1970, that is, the 22nd December, 1970. But phase III still had to be completed (unless there was some extension of time under clause 23 of conditions "C") by the specified date, the 30th April, 1972, which was only about 16 months after the 22nd December, 1970. Thus the period available for completing phase III, which would have been 30 months if there had been no delay in completing phase I, was, by reason of such delay, only about 16 months. The Respondents did not exercise their option to cancel phase III.
In that situation a dispute arose as to the contractual position, and there was a curious reversal of the usual attitudes in such cases. The Appellants were claiming that the express provisions of the contract were to be read literally and no implied term could be introduced, and so the Appellants were not entitled to any extension of time and were bound to complete phase III by the specified date. They professed to be able to complete their...
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