BuildLaw Issue 36 July 2019 | Page 22

finding themselves in a similar position to Valla Yachts.
The restitutionary argument is not without difficulty, however. Such claims are usually unavailable where contractual remedies already exist. It might be said that the employer should be left to its usual remedy to sue the contractor for damages caused by a breach of any project management obligations. A restitutionary claim, if successful, may also work considerable injustice to the main contractor. Having reimbursed the employer for payments made directly to its subcontractors, it may find itself without any ability to recover those amounts. Even if it were to subsequently show that the subcontractors’ claims were invalid, it is difficult to immediately identify what cause of action would be available to it to claim for the reimbursement of the sums it had paid to the employer.

References
Nobiskrug GmbH v Valla Yachts Ltd [2019] EWHC 1219 (Comm).

about the authors

Sarah Leaver
Associate, London

Karen Clarke
Partner, London

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