The date matters, because the contract said Cresspark could determine (i.e. end) the contract if work was suspended for over a month. But after a conversation with consultants J Webster Associates, Cresspark agreed to give the client until 9 May.
Morshead put off deciding right up until the deadline. Not until 11am on 9 May did it contact its solicitors worrying that it might be trading insolvently if work recommenced. J Webster drafted a letter lifting the suspension and faxed it to the solicitor for advice on wording. The time was 12.37.
Morshead still delayed. A director told the solicitor he would be out until "four-ish" but that another director was on his way home and could be reached there. It was not until late afternoon that Morshead gave the nod to the letter and at 17.20 the solicitor phoned J Webster with its advice. At 17.28 J Webster sent the letter to Cresspark, and a copy to the QS, asking it to issue a formal site instruction, but it was too late for the QS to act that day.
Cresspark determined the contract the next day, saying J Webster's letter was invalid as it hadn't come from the contract administrator.
Morshead then turned on its consultants and sued the solicitor Edward Lewis and J Webster, saying nobody told them the letter lifting the suspension had to come from contract administrator Love Jenkins.
In a preliminary hearing, the court held that Edward Lewis had a real prospect of defending itself when the issue went to full trial, partly because Morshead had not specifically asked the solicitor who was to send the letter and partly because its directors were difficult to contact on May 9.
Moral: If you ignore it, it won't go away
Post traumatic
As it happened, Morshead Mansions won at first because Edward Lewis didn't get around to filing its defence on time. The defence was due on 21 November, but eight days later, the documents had still not arrived. On 29 November the court issued a judgement in default; that is, it said that Morshead had won the case because Edward Lewis had failed to provide a defence.
The court office doesn't generally issue a judgment if the documents are late, but they do if they haven't turned up by the time the court gets round to considering the case. Edward Lewis had posted its defence to the court on 28 November and argued that popping it in the post box constituted the act of filing. But the judge pointed out that the court officials could not be expected to know that a document was in the post. He said that Edward Lewis could have delivered its defence by fax or other means and he would not set the judgment aside.
Moral: You can't just say 'it's in the post...'
Case: Morshead Mansions Limited versus others. High Court, August 15 2003
Source
Construction Manager
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