Loss of opportunity? An assessment of damages for alternative methods of performance in construction contracts (Mallino Development Ltd v Essex Demolition Contractors Ltd)

Table of contents

• What are the practical implications of this case?
• What was the background?
• Legal issues
• What did the court decide?
• Case details

Article summary

Construction analysis: This case was previously the subject of two adjudications and involved an application by the developer/employer, Mallino Development Ltd, who disputed the second adjudicator’s decision to award the contractor, Essex Demolition Contractors Ltd, any lost profit or overhead contribution following Mallino’s repudiation of the construction contract. The judge ultimately concluded that the contractor was entitled to damages in relation to loss of profit and overheads. The decision provides guidance in relation to the assessment of damages in circumstances where the contract does or does not provide for alternative modes of performance. It also considers the topic of loss of opportunity and its quantification, with a worked example of calculating the percentage of the damages. Written by David Savage, partner, Charles Russell Speechlys LLP.