When I recently told a Contractor that clause X7 was not required, they were reluctant with this as they said that they would be open to damages at large? Is this correct? I thought that as it is a secondary option, that if we didn’t use it then it wouldn’t apply? Please can you confirm which is correct for me?
Including X7 and thereby defining delay damages this way, does give both parties more clarify of the likely impact of delays. Without LADs under X7 (i.e. you chose not to used X7) the Employer would be entitle to recover damages through the normal legal processes. The amount of the damages would be defined through this process but is uncapped or “at large”. This could be substantial more than the delay damages set out in the CDP1 if a nominal value has been inserted. Delay damages once included in the contract are the Employer’s sole remedy delay damages, so if set artificially low they can act as a limit of liability for delay damages.