West Faulkner Associates v Newham London Borough Council
| Jurisdiction | England & Wales |
| Judgment Date | 10 November 1994 |
| Date | 10 November 1994 |
| Court | Court of Appeal (Civil Division) |
Court of Appeal
Before Lord Justice Balcombe, Lord Justice Hirst and Lord Justice Simon Brown
Building contract - contractor's obligation - work to proceed "regularly" and "diligently"
There was a measure of overlap between the words "regularly" and "diligently" in clause 25(1)(b) of the JCT standard form of contract. What particularly was supplied by the word "regularly" was not least a requirement to attend for work on a regular daily basis with sufficient in the way of men, materials and plant to have the physical capacity to progress the works substantially in accordance with the contractual obligations. What in particular the word "diligently" contributed to the concept was the need to apply that physical capacity industriously and efficiently towards the same end.
Taken together, the obligation upon the contractor was essentially to proceed continuously, industriously and efficiently with appropriate physical resources so as to progress the works steadily towards completion substantially in accordance with the contractual requirements as to time, sequence and quality of work.
The Court of Appeal so stated in dismissing an appeal by West Faulkner Associates against a judgment of Judge Newey, QC, on October 1, 1992, holding them liable in damages to the London Borough of Newham for breach of a contract under which they were engaged as the architect in respect of works of modernisation entered into between the council and a firm of contractors.
Mr Richard Fernyhough, QC and Mr Adrian Williamson for the plaintiffs; Mr Bruce Mauleverer, QC and Miss Kim Franklin for Newham.
LORD JUSTICE SIMON BROWN said that put at its shortest the judge had held that Faulkner were in breach of their duty in failing to give the contractors notice under clause 25(1)(b) of the standard JCT conditions, a notice which the architect "may give … if (the contractor) fails to proceed regularly and diligently with the works".
At the heart of the appeal lay questions as to the true construction of clause 25(1)(b), questions upon which there was little authority.
The contract was to renovate 150 dwellings on a housing estate. From the very beginning it became clear that the envisaged programme would not be achieved and the position never really improved.
The delays and uncertainties had serious effects upon the tenants whose lives were dreadfully...
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