Case No. 0LS79020

142. I find that, if the contract had been signed, the Trust’s position would have been materially improved. Again, I shall explain my reasoning and set out my more detailed conclusions when I consider quantification of the claim. At this stage, it suffices to make three short observations.143. First, a signed contract would have improved the Trust’s position because it would have put it beyond doubt that the contract between the parties contained the liquidated damages provision. In the circumstances that in fact obtained, there was only an uncertain argument that the parties’ conduct had given rise to a contract on terms that incorporated the liquidated damages provision. 144. Second, the value of the benefit of the liquidated damages provision depends in part on the susceptibility of that provision to challenge on the ground that it constituted an unenforceable penalty. The potential for challenge on that ground does in my view have an effect on the value of a signed contract, but in my judgment there would nevertheless have been a substantial benefit in having a contract containing the liquidated damages provision.145. Third, even if the Trust had enjoyed the benefit of a signed contract containing an apparently valid liquidated damages provision, it would not have been axiomatic that its position was improved. In particular, it might be that there was a plausible case for extensions of time or for additional payments to Kier under the contract. I take these matters into account and shall say some more about them when dealing with quantum. 146. For the present, it suffices to say, in summary, that in my judgment the benefits to the Trust outweighed any countervailing factors.