Civil Engineering Reference
In-Depth Information
contractor would have to be nominated. But the contractor would have to pay damages for
its breach of contract including any loss caused to the employers by that breach.
Although I have come to a clear conclusion that there was in this case a duty to re-nominate,
the provisions of the RIBA form of contract are so confused and obscure that no conclusion
can be reached without a long and complicated chain of reasoning. The RIBA form of condi-
tions sponsored by the Institute is in very common use. It has been amended from time to
time. For a long time it has been well known that the question at issue in the present case has
given rise to doubt and controversy. It could have been set at rest by a small amendment of
these conditions. But the Institute have chosen not to do that, and they have thereby caused
the long and expensive litigation in the present case.
I would dismiss this appeal.
The reasoning in the
Bickerton
case rests on the holding that the contractor is neither
bound nor entitled to do the nominated sub-contract work himself. On the other hand
it is clear that, in principle, the contractor is liable to the employer for bad work by the
nominated sub-contractor and himself has an action against the nominated sub-
contractor. In
Bickerton
the nominated sub-contractor did no work at all. Is the position
different where the nominated sub-contractor withdraws in mid-contract? It has been
held that in this case, the employer remains bound to re-nominate and is therefore
responsible for any loss due to delay in re-nomination, but the loss arising from the
nominated sub-contractor's withdrawal falls on the contractor. See also
Fairclough
Building Ltd
v.
Rhuddlan Borough Council
(1985), p. 427.
Percy Bilton Ltd v. Greater London Council
HOUSE OF LORDS
(1982) 20 BLR 1
The facts of this case are set out on p. 328.
The case arose from the withdrawal of a nominated sub-contractor. The parties
agreed that the sub-contractor's withdrawal had caused both direct delay and also led
to further delay arising from the GLC's delay in making an effective re-nomination.
Held:
Although the second category was the employer's responsibility, the first was the
responsibility of the contractor.
LORD FRASER OF TULLYBELTON [having stated the general position as set out on p. 329, con-
tinued]: These principles do not, in my opinion, operate in any way harshly or unfairly against
the appellant. The so-called 'dropping out' of the nominated sub-contractor was not merely
unilateral action by him. The mechanics of the matter were that on 26 July 1978 a firm of
building and quantity surveyors, acting on the instructions of the receiver and manager of
Lowdells, wrote to the appellant intimating that their labour would be withdrawn by 28 July
1978. That was a notice of intention to repudiate the sub-contract. It was in effect, accepted
by the appellant in a reply dated 31 July, in which it purported to 'determine' the subcontract
under clause 20(a)(i) which entitled it to determine the sub-contract if the sub-contractor
