‘DISPUTE’, ‘DIFFERENCE’ AND CLAUSE 66 OF THE ICE CONDITIONS OF CONTRACT

Amec Civil Engineering Ltd v Secretary of State for Transport [2005] EWCA Civ 291; [2005] All ER (D) 280 (Mar)

In Amec Civil Engineering Ltd v Secretary of State for Transport [2005] EWCA Civ 291; [2005] All ER (D) 280 (Mar) the Court of Appeal held that an over-legalistic approach should not be taken to the words ‘dispute or difference’ in clause 66 of the Institution of Civil Engineers Conditions of Contract. In concluding that there was a dispute or difference in existence between the parties, the court had regard to the fact that the limitation period was about to expire, the works were both complex and substantial and the contractor had refused to accept responsibility for the defects which had materialised in the works. The Court of Appeal further found that the engineer had not acted unfairly in reaching his decision without giving to the contractor the opportunity to make representations as to its case. Different views were expressed by the Court of Appeal as to the extent of the obligations that are imposed upon the engineer in such circumstances. The primary duty of the engineer is to act independently and honestly. It can also be said that the engineer must act ‘fairly’ provided that what is regarded as fair is flexible and tempered to the particular facts and circumstances of the case.