My signed contract states in contract data part 1 that delay damages are £1500 but with no unit of time within the client version of the contract data part 1. Originally the intent was for this to be daily, but we verbally negotiated this as weekly during the tender period and is what our tender price reflected in terms of risk but the final signed contract ended up with no unit of time at all.
The standard wording of X7 (which is unamended) states about paying damages at the rate stated in contract data for each day, but equally the standard contract also states per day in contract data part 1 which they have amended themselves.
Where does this leave the liability as?
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This is an interesting scenario and a nice illustration of what not to do when amending contracts.
My immediate reaction to this is that your delay damages are £1,500, full stop. There is no rate stated in the Contract Data and therefore the £1,500 is applied once and once only if you are late in delivering the works. There is however, a caveat here in that I would be very surpirsed if this scenaior had not come up before and there may be some case law, of which I am not aware, that we could use for guidance.
I also have another observation. You state that you have negotiated the sum of £1,500 from daily to weekly. I can’t therefore see how this represents a genuine pre-estimate of the Employer’s loss. If this is the case then the damages may not be consdered valid. There is a nice paper on LD’s at this link www.turnerandtownsend.com/855/Liquidated_Damages_oeN9s.pdf that you may find helpful.
Perhaps our legal friends can shed more light on this conundrum?
Damages cannot exceed “a genuine pre-estimate of likely loss”. I.e. they can be less and in order to avoid excessive risk transfer - which the Employer will pay for - frequently are. A supplier would be dum to challenge these stated damages if the real damages are more as, once the court has struck them out, the supplier would then be liable for a grearter sum.