Walter Lilly & Company Limited v Mackay & Anor [2012] EWHC 1773 (TCC)
In this important decision (one of several to be decided between these parties) the court clarified the position in respect of several issues which arise regularly on construction projects. In relation to loss and expense claims, the judge confirmed that the obligation on the Architect/Contract Administrator to "ascertain" loss and expense does not mean that the contractor has to prove its claim "beyond reasonable doubt" instead, the balance of probabilities test applies.
The judge also confirmed that it is legitimate for the contractor to bear in mind the knowledge that the Architect/Contract Administrator has of the project when supplying supporting documents for his claim. The judge also took the opportunity to clarify the position with regards to extensions of time where there are concurrent delays to the works. It was confirmed that (unless there are express contractual terms stating otherwise) where there are two concurrent delays, one which entitles the contractor to an extension of time and one which does not, then there should not be any apportionment between the two delays. The contractor should receive an extension of time for the whole period of the relevant delay.
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