Can you get back delay damages our main contractor has already deducted?
Yes: we can pursue any part of the deduction that your documents and the arithmetic do not support.
Updated: . By Jack Butler-Kettle, Construction Claims Consultant.
The answer
Delay Damages Claim tests the charge against the rules in your subcontract and the extensions you applied for. First we take those rules, clause by clause, from your signed subcontract. That means the rate or basis of damages, the completion dates and how the period is counted. It also means the extension of time terms, any cap, and any rule for work taken over early. Then we check each part of the charge against your records. Those are your delay notices, your extension applications and the replies, the completion records, and the Pay Less Notice or statement that carried it. We redo the arithmetic and set it beside the sum taken. You decide what to press. We put your position to your main contractor and negotiate, or run adjudication where the sum and the evidence justify it. We then trace the money to the valuation it comes back in. Whether your completion date should have moved further is for a programming expert, where it decides the charge. Whether a rate is enforceable is a question for your solicitor. If a Pay Less Notice carrying delay damages has just arrived, a written challenge goes out in your name within the period first. The full review follows.
Example
Illustrative example. The scenario and figures are invented.
The facts
A partitions subcontractor finds £24,000 of delay damages taken across four payments: 8 weeks at £3,000 a week, counted from its original completion date.
What happens
- The rate, the counting rule and the extension of time terms are taken from the signed subcontract.
- The Pay Less Notices, the extension applications and the replies are set beside the count.
- A 2-week extension granted in writing is missing from the count, so the main contractor's own dates support 6 weeks.
- The £6,000 difference is put to the main contractor with the extension letter attached.
- Whether a further week was due for late access is left to a programming expert, with the £3,000 at stake set out.
The deduction recounted
| Item | Weeks | Amount |
|---|---|---|
| As deducted | 8 | £24,000 |
| Extension granted, left out of the count | 2 | £6,000 |
| Supported by the main contractor's own dates | 6 | £18,000 |
The outcome
The £6,000 is credited in the next valuation, and the one disputed week waits on the expert's view.
To have a delay charge tested and the unsupported part pursued, see our Delay Damages Claim service.