Liquidated damages - Building Contract Claims - page 49

had been inserted in the contract and already deducted. This was on the
straightforward principle that damages cannot be recovered twice for the
same breach of contract. This view is supported by earlier decisions 132 .
This principle should be distinguished from the situation where the
defendant is in breach of two ormore obligations, for one ofwhich the stipulated
remedy is liquidated damages and for the other(s) the remedy is to sue for
unliquidated damages. A related situation is where there is but one breach
which gives rise to a loss which may be said to trigger a remedy in liquid-
ated damages and a separate kind of loss for which other damages are
appropriate. The former situation is illustrated in E. Turner & Sons Ltd v.
Mathind Ltd 133 , where a number of flats were to be completed in stages and
there was a final completion date for the whole development. Liquidated
damages were stipulated only for failure to meet the final completion date.
Although expressed obiter, it was the court's view that the liquidated
damages clause, standing alone, was not an effective exclusion of any
right to damages for earlier breaches of obligation. There was every reason
to suppose that the parties intended the staging provisions to be contractual,
possibly leading to a higher contract price. Without a specific overriding
provision, breach of such provisions results in damages. The decision was
curious because the development was carried out on the basis of the Stand-
ard Form of Building Contract 1963 Edition (JCT 63). It had a provision in
clause 12(1) which was similar to the current clause 2.2.1 of JCT 98 to the
effect that nothing in the bills of quantities was to override, modify or affect
in any way whatsoever the application or interpretation of the 'Conditions'.
This provision, although contrary to the normal rule that 'type prevails over
print' has been upheld by the courts 134 . The staging provision was to be
found only in the bills of quantities.
The only other case in point had been M. G. Gleeson (Contractors) Ltd v.
Hillingdon Borough Council 135 , where the argument really seems to have been
about whether the single sum of liquidated damages could be distributed
over the stages noted in the bills of quantities. The court had held that, on
the basis of clause 12(1), such an interpretation could not be upheld. It is
interesting to speculate whether the claimant in that case would have met
with more success had he argued on the basis that there were two distinct
breaches: breach of the obligation to complete the whole development on a
fixed date for which the remedy was a sum set as liquidated damages; and
breach or breaches of the obligation to comply with a set of intermediate
dates for which the remedy was unliquidated damages.
In this context, it is useful to look at Ford Motor Company v. Armstrong 136 ,
where the claimants agreed with the defendant that he should sell their

132 See Diestal v. Stevenson [1906] 2 KB 345 and Talley v. Wolsey-Neech (1978) 38 P & CR 45, where the
courts prevented the claimants from recovering amounts greater than those stipulated by way of
liquidated damages.
133 (1986) 5 Const LJ 273, CA.
134 See, for example, English Industrial Estates Corporation v. George Wimpey & Co Ltd [1973] 1 Lloyds
Rep 51.
135

(1970) 215 EG 165.

136

(1915) 31 TLR 267.