The completion date was 5 February 2001, but owing to a number of reasons, including variations, delays and disruption, the works were not completed until 31 October 2001.
During the extended period, we had written to Mace and advised them that we would be submitting a claim for delay and disruption. Within four weeks of completion, as required under the contract (and not one year later as implied by Mr Pigott), our quantity surveyor delivered our delay and disruption claim to Mace. That account arrived back at our office before our QS did! With it was a covering letter advising us that there was an agreed and signed final statement of account for all works up to 27 April.
I was very puzzled. How could there be an agreed final account seven months before the job was completed? I rechecked the contract and that said we had to submit our account within 28 days of completion, and we had done so. No mention of "early" final accounts. I phoned our project manager to see if he could shed any light.
No, he did not know what Mace were referring to either, as the only documents he ever signed were our monthly application for payment and the monthly interim statements of account forms, which were Mace's system for keeping a running total of the values of the CMIs issued.
So I then hunted through the job files and found the document Mace was referring to among the monthly ISAs. It had been prepared in the same format as the ISAs but with the title changed to "Final Statement of Account" and handwritten beside that "stage 1". In small print on the back page a fairly standard "full and final settlement" clause had been added.
Our project manager had signed it but had no recollection of having done so. He had just treated it as another ISA. Nobody from Mace had indicated any difference from the norm to him, nor that he was being requested to sign a final account document. Not quite the case of amnesia that Mr Pigott attempts to imply.
This therefore gave us a problem, as effectively the signature on the document appeared to prevent us from claiming our loss and expense entitlement. The only course of action open to us was to challenge the validity of the document in court. First and most importantly, we argued that there was no provision for such a document in the trade contract and that our project manager, did not have the authority to vary the terms of the trade contract itself, and second, we claimed a unilateral mistake, whereby one party is mistaken as to a document's meaning.
At the hearing in the TCC, our project manager and I gave evidence. We were both robustly cross examined by ML's counsel for several hours each. The above synopsis addressed the major points covered in the cross-examination.
The judge found in our favour on both points, and granted a declaration to free us from any obligation under the document. ML appealed the decision, but the Court of Appeal upheld the judge's decision unanimously.
Mr Pigott failed to mention the authority point at all, and appears to bemoan the decision in the case of unilateral mistake.
I tend to view this as a judgment for common sense. If two parties enter into a contract under an agreed set of terms and conditions, and in this case ML insisted on having written confirmation that I as commercial director had authority to bind the company into the contract, then surely only I should have the power to amend them.
This is not just a case of moving the goalposts, the ball had been taken away from us as well! Mr Pigott's firm, Wragge and Co, advised ML in this matter.
Mike Grant is commercial director of Hurst Stores & Interiors. Building welcomes comments on legal columns: send them to us at email@example.com