A somewhat different line was taken by the TCC in Willmott Dixon v London Borough of Hammersmith and Fulham. There a factual enquiry was deemed necessary to determine, in all of the circumstances, if and when the defaulting party would have exercised its right to terminate for convenience. In Redbourn Group Ltd v Fairgate Developments Ltd [2018] EWHC 658 (TCC), Andrew Bartlett QC, sitting as a Deputy High Court Judge in the Technology and Construction Court (TCC), held that a professional consultant was not entitled to claim fees for services that it had agreed to perform when its appointment was repudiated before those services were in fact carried out. RGL was appointed as development manager by Fairgate in respect of the development of Fairgate’s own building and two adjoining pieces of land. RGL’s remuneration under its appointment was broken down into stages with fixed fees associated with those stages of work. Fairgate purported to terminate the contract for material breach by RGL. Fairgate’s allegations in this regard were rejected by the court in a previous hearing and Fairgate was found to have repudiated the contract. RGL claimed damages for Fairgate’s repudiation, consisting of the fixed fee for securing planning permission and its project management fee together with the bonus for completing on time and on budget. This was said to reflect the sums RGL would have earnt had the contract been carried out. RGL’s claim was rejected by the court on two grounds: The contractual discretion given to Fairgate to approve any application for planning permission meant that RGL never had a guaranteed right to earn the remaining fees under the contract. RGL’s appointment could have stalled at the planning permission phase through no fault of its own or Fairgate’s. Alternatively, on the facts RGL would never have been able to achieve a key deliverable (namely the lease of the Network Rail land) and the project originally envisaged in RGL’s appointment had therefore become an unrealistic project to pursue. Fairgate would therefore have been justified in deciding not to proceed with the project. This case provides another example of a right to terminate for convenience (or in this case a discretion not to proceed) imposing a limit on a defaulting party’s liability for loss of profit in the event of termination. Final Grenfell Tower Report
The independent review by Dame Judith Hackitt into Building Regulations and fire safety, which was commissioned by the government following the Grenfell Tower fire which killed 71 people, has published its final report. One of the most extraordinary aspects of the report into the Grenfell Tower disaster is that it hammers home how a fire in a single fridge-freezer in a flat on the fourth floor can go on to consume a 24-storey building if adequate fire safety mechanisms have not been put in place to stop it.