Case No. 0LS79020

(1) Kier advanced this claim at the mediation, with the support of an analysis from Driver Consult.(2) The claim was analysed by Mark Edge, TTPM’s Senior Project Manager, in a “Current Status Report” dated 27th January 2006. Mr Edge did not give evidence at the trial, and there is nothing before me to indicate that either he or any other relevant person at TTPM has ever resiled from the analysis in that document. This is what Mr Edge wrote: “3. Claims for an Extension of Time 3.1 Weather The majority of time claimed for the Extension of Time is due to inclement weather. This application was initially submitted by Kier in their letter of 17th September 2004. Turner & Townsend responded to this letter on 1st October 2004 requesting additional Information. Kier subsequently issued a second letter on 30th November 2004 which requested a nine week extension of time. The amount of time claimed did not appear realistic and of the seven week’s attributed to inclement weather a five week delay was rejected. An extension of time granting a two week extension was therefore issued on 2nd December 2004.3.2 Value Engineering KN have requested an extension of time (letter of 20th November 2004) due to the inclusion of works in the Value Engineering Register. The re-design of various elements due to VE opportunities brought about difficulties in construction on site which KN claim added to the programme. For example during value engineering it was proposed by Kier’s team that the Housemaster’s houses could be built without the need for a steel frame. However Kier’s implementation team which had not been party to their value engineered re-design did not feel this was feasible and therefore the programme and costs to Kier appeared to be increased. The roof voids had been proposed to be reduced in size however this appeared to create problems during the construction phase in the routing of the services which clashed with the steelwork. As these works were included in KN’s Contractor’s Proposals they are not a valid reason for an Extension of Time.3.3 Variations The total variations on the project generated a reduction in the contract sum of £97,463. The variations instructed are of a minor nature. Works such as the joinery fit-out of the Boot Room (£6k) and the provision and installation of furniture (£152k) have been omitted from the contract which should have reduced Kier’s programme overall. As such an extension of time due to variation is not considered valid.…5 Conclusion The issue of the contract being in place is central. Were the contract in place and the LAD sum not considered penal it appears that the Abbey have a strong case for pursuing their claim.”(3) The logic of TTPM’s primary case on causation at the trial—that Kier’s alleged unwillingness to sign the contract was due to the risk of liability for liquidated damages for delay—was entirely consistent with Mr Edge’s opinion regarding extension of time. The point is made neatly by Mr Hinchliffe (paragraph 102 of his supplemental report): “… from late May 2004, and probably earlier, I believe Kier was aware of programme slippage, for which it realised it would probably struggle to justify the award of an EOT [extension of time].”(4) Dr Aldridge has considered the causes of delay and Kier’s claim for an extension of time. It is unnecessary for the purposes of this judgment to rehearse that analysis in detail; it is consistent with Mr Edge’s opinion and the implication of Mr Hinchliffe’s remark set out above. Dr Aldridge’s conclusion is as follows (supplemental report, paragraph 1.3.17): “The only EOT claim that appears valid is the claim for exceptionally adverse weather. TTPM’s 2 week award for this Relevant Event appears generous …”(5) The claim for an extension of time cannot be discounted entirely, in circumstances where, as Mr Edge had anticipated in his Report, Kier was ostensibly keen “to vigorously defend [its] position”. The Trust would reasonably have taken it into account when negotiating a settlement or pressing on with protracted litigation. However, on the basis of the evidence before me I do not consider that the claim for an extension of time would substantially have diminished the value of the liquidated damages provision.186.