AXA Insurance UK PRC v Cunningham Lindsey United Kingdom (an unlimited Company)

This was a claim for professional negligence against loss adjusters in relation to the reinstatement of an old farmhouse. A number of issues were raised, indeed 21 different types of breach of contract were pleaded. One of these was whether provision should have been made in the contract for a specific period for the conclusion of the works and for liquidated and ascertained damages for delay. Both experts agreed that it would have been good practice to do so but disagreed as to whether or not the failure to do so was negligent. Mr Justice Akenhead seemed to accept that whilst it would have been good practice, at least in the circumstances of this case, the failure did not amount to a breach of contract. He noted that:

"the advantage of having a specified contract period and provision for liquidated damages is that they provide a tool or weapon to bring pressure on a contractor who is falling behind. In theory and indeed in practice, a contractor who has not expressly agreed a period for completion or any liquidated damages will be obliged, by occasion to complete the works within a reasonable time and to pay damages at common law for failing to complete within a reasonable time. Thus there will remain a contractual obligation and potential contractor liability with regard to completion and palpably late completion."