ADHERENCE TO CONTRACTUAL PROCEDURE FOR ASSESSMENT HELD TO BE A CONDITION PRECEDENT TO RECOVERY OF LOSS AND EXPENSE

In WW Gear Construction Ltd v McGee Group Ltd [2010] EWHC 1460 (TCC), [2010] All ER (D) 224 (Jun) Mr Justice Akenhead held that the requirement to make a timely application in writing was a precondition to the recovery of loss and/or expense under clause 4.21 of the JCT Trade Contract Terms 2002 edition, with Amendment No 1: 2003. It followed that the contractor had no entitlement to recover such loss or expense unless and until it had made such an application because it was the application which triggered the ascertainment process which led to the adjustment of the contract sum. Akenhead J therefore granted to the employer a declaration that the contractor was required to comply with the provisions of clause 4.21 as a condition precedent to its entitlement to loss and expense under and pursuant to clause 4.21.