Sentence 2 of the clause stated: ‘ The total liability of CONTRACTOR to PTT under the Contract shall be limited to the Contract Price received by CONTRACTOR with respect to the services or deliverables involved under this Contract.’ Sentence 3 stated: ‘Except for the specific remedies expressly identified as such in this Contract, PTT’s exclusive remedy for any claim arising out of this Contract will be for CONTRACTOR, upon receipt of written notice, to use best endeavour to cure the breach at its expense, or failing that, to return the fees paid to CONTRACTOR for the Services or Deliverables related to the breach.’Īt first instance, Jefford J held that PTT was entitled to recover liquidated damages for delay pursuant to Article 5.3 up to the date of termination. Paragraph 3 of Article 5 ‘Schedule of Services’ (‘Article 5.3’) provided for liquidated damages to be paid at a rate of 0.1% of ‘ undelivered work per day of delay from the due date of delivery up to the date PTT accepts such work’.Īrticle 12.3 ‘Liability and Responsibility’ concerned the cap on damages. PTT denied that any further payments were due and counterclaimed liquidated damages for delay and damages due upon termination of the contract. Triple Point issued proceedings for the recovery of outstanding sums.
The work was delayed and, following a dispute concerning the payment of invoices, PTT terminated the contract. The contract was subject to the laws of England and Wales. PTT contracted with Triple Point to replace an existing commodities trading system and develop it to accommodate new types of trade. It remains to be seen what the Supreme Court will make of Sir Rupert’s judgment. It was held that Triple Point did not apply to an amended 1999 Silver Book.
Triple Point was considered by Mrs Justice Cockerill DBE in the TCC. This was a major departure from construction industry practice and understanding. Sir Rupert Jackson gave the leading judgment, suggesting that where the contractor fails to complete the project, general damages at common law may be a more logical remedy than liquidated damages up to the date of termination, with general damages thereafter.
Triple Point was a case heard in the English Court of Appeal in March 2019 concerning the operation of liquidated damages clauses in the event of termination of a bespoke form of software contract. PBS Energo AS v Bester Generacion UK Ltd and others EWHC (TCC) Triple Point Technology, Inc v PTT Public Company Ltd EWHC 2178 (TCC) Triple Point Technology, Inc v PTT Public Company Ltd EWCA Civ 230
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