Deducting liquidated damages is simple when compared with the task of having to prove unliquidated damages. But if that option is conditional on complying with a contract procedure, carefully following that procedure can be critical. Under a JCT 2011 Intermediate Contract completion was delayed and the contract administrator issued a certificate of non-completion. They subsequently issued an extension of time but no further certificate of non-completion. The employer later issued a payless notice and deducted liquidated damages but the contractor said they could not do that.
The judge agreed. The contract said that if an extension of time was made after a certificate of non-completion, the certificate was cancelled and the contract administrator “shall, where necessary, issue a further certificate”. As they had not done so, that condition for deducting liquidated damages had not been met and they could not be deducted.
The judge also ruled that costs incurred by claims consultants assisting a litigant in person will usually be recoverable on adjudication enforcement proceedings, assuming that the same consultants have represented the party in the adjudication.