Remedies - Scottish Construction Contracts - page 254

Chapter 10
Remedies
10.1 Introduction
Disputes arise under construction contracts as with any other type of contract. While
the resolution of such disputes is considered in Chapters 15, 16 and 17, in this chapter
we will consider certain of the remedies that are open to parties where a dispute
arises.
While certain of the remedies are, perhaps, peculiar to building contracts, the ordi-
nary remedies that are open to the parties to any form of commercial contract are
also available. The remedies that are most commonly associated with building con-
tracts are to be found within the provisions of the standard form contracts, such
as the SBC, the SBC/DB and the NEC3. Certain of these remedies, such as liqui-
dated and ascertained damages and extensions of time (Section 6.5), and termination
(Section 9.4) have been considered previously. However, certain others are considered
in this chapter. Separately, we will consider the general common law remedies open
to parties, some of which are quite independent of those arising under the terms of a
specific contract.
Ordinarily, the general common law remedies and the remedies provided for in a
specific contract will exist at the same time, see Gilbert Ash (Northern) Ltd v. Modern
Engineering (Bristol) Ltd (1974). A party's common law rights can only be taken away
by clear, unequivocalwords,see Redpath Dorman Long Ltd v. Cummins Engine Co. Ltd
(1981).heextenttowhichthatisachievedwilldependuponthetermsofthecontract
in question. See, for instance, the Scottish case of Eurocopy Rentals Ltd v. McCann
Fordyce (1994), in which it was held that the contractual termination provision was
the exclusive method of termination.
There are both advantages and disadvantages associated with each of the types of
remedy. For example, a liquidated damages provision of the nature contained in both
clauses 2.32 of the SBC and 2.29 of the SBC/DB is of advantage to the employer in
that they are not required to prove the actual loss they have sustained as a result of
the contractor failing to complete the works on time. he downside of clauses such as
this is that the employer must adhere strictly to the provisions of the clause to entitle
them to deduct liquidated damages.
MacRoberts on Scottish Construction Contracts ,hirdEdition.MacRoberts.
© 2015 John Wiley & Sons, Ltd. Published 2015 by John Wiley & Sons, Ltd.