“Triple Point Technology – Pointing to confusion” by pupil barrister Anson Cheung appears in the most recent issue of The International Construction Law Review – the leading authority on international construction law.
The paper first summarises the previous approaches of the courts in similar claims for liquidated damages in abandonment, and surveys the approach adopted in Triple Point Technologies. It goes on to criticise the court’s decision to disapply the liquidated damages clause for three reasons:
- the decision the Court of Appeal relied on as authoritative did not truly decide the point at common law and should have been distinguished.
- the disapplication of the liquidated damages clause departs from the accepted understanding of accrued rights in the context of termination; and lastly,
- that the practical significance of Triple Point Technologies creates an anomaly that incentivises breach of contract and undermines the bargain between the parties.
The paper proposes that Triple Point Technologies ought to have taken what this paper terms “the Orthodox approach”, and suggests the arguments available in reforming the law as it stands.
This article is based on one of two joint winning entries in this year’s Society of Construction Law’s Hudson essay competition – published by the SCL at http://www.scl.org.uk.