Loss and/or expense - Construction Contracts - page 313

193 To what extent is a contractor obliged to provide information
requested by the architect or quantity surveyor in connection with
loss and/or expense?
It is a normal part of legal or arbitration proceedings that parties engage in the disclosure
of all relevant documents to each other. However, that is not the case in adjudication, where
the parties can choose what information they provide to the adjudicator. In most cases, the
parties obviously only give the adjudicator the information which supports their particular
argument. Further information is only revealed either in order to refute something the other
party has said or because the adjudicator has specifically requested it.
The case of Transport for Greater Manchester v Thales Transport and Security Ltd
(No.1) 27 concerned acontract whichexpresslyprovidedthatinformation wastoberecorded
and given to the other party, Transport for Greater Manchester (TGM). Thales made a claim
for extension of time and payment of over £42 million, and TGM asked for various doc-
uments. When Thales failed to provide the documents, TGM started legal proceedings for
what is called 'specific performance'.
Specific performance is, as the name suggests, a request by one party to a contract asking
thecourttoordertheotherpartytodosomethingwhichthecontractrequirestobedone.The
court has discretion whether or not to order specific performance. The court will not usually
order specific performance if damages would be an adequate remedy or if constant supervi-
sion by the court is necessary to ensure that the order is carried out. In most cases, damages
will be an adequate remedy, and therefore specific performance of contractual obligations is
not often ordered.
Inthiscase,thecontractclearlyprovidedthatThaleswouldmaintainaccurateinformation
for at least 12 years in a form suitable for inspection. The contract went on to give a very
detailed list of the information and to provide that TGM were entitled, on reasonable notice,
to inspect and copy any of the records. Damages would not be an adequate remedy, because
TGM required the information to check the claim. The court granted the application and
ordered disclosure of the relevant documents.
The court made clear that specific performance of this kind will only be ordered where
the documents required are very precisely described, so that the court has no difficulty in
checking that the party has complied with the order. If there is a dispute about whether a
document exists, if its description is not precise enough or if the document is protected by
privilege (for example legal advice), specific performance will not be ordered.

1 Apassagefrom Skanska Construction UK Ltd v The ERDC Group Ltd [2003]SCLR296quotedin Cantrell

& Another v Wright & Fuller Ltd (2003) 91 Con LR 97.
Cantrell & Another v Wright & Fuller Ltd (2003) 91 Con LR 97. 2