NEC3 ECC: Secondary Option X7 & x18.4 - Damages

NEC3 and NEC4 Contracts Secondary X, W and Y options
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Employer wants to recover loss / damages he will incur due to Contractor delaying project. X7 is limited to 10% of contract value, and this will only be on overall Completion. X18.4 (limit of liability) - 100% of the total of the prices. Four questions,

  1. Can Employer recover the loss he had to pay others for standing time and acceleration as well as penalties , under 18.4 , as X7 will never cover all the costs.
  2. Can this loss be seen as consequential / indirect, even if it is as a direct result of Contractor lack/ poor performance.
  3. How do you recover this money, what’s the procedure to be used as I can not issue a negative CE , back charge or claim or a reduction in the prices as far as I know. Does the NEC recognise a “claim” can I issue a notice of claim? and if I do, does this fall outside the contract (NEC) and become a legal matter?
  4. I understand that X7 is for delay damages, but what is X18.4 for, and can you claim under X7 and X18.4?

Thank you

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Question 1 - Delay Damages will be a complete remedy for time related costs. Therefore, no standing time cannot be claimed above the delay damages limit.

Question 2 - Under X18.4 this is total liability, that is both direct and indirect. There are two different percentages with different regimes, you seem to be mixing them. I cannot see standing time as consequential, it is really direct.

Question 3 - If you have X7 for delay damages then that is one of the matters to be taken into account in the monthly payment (ie amounts the contractor owes to the employer). If you do not have a delay damages provision then you would make the deduction in the same way but stated as a consequence of breach of contract so damages.

Question 4 - X18.4 is for total liability howsoever arising except for the excluded matters. So, examples could be defects, damage to adjoining property, environmental prosecution and so on. X7 is excluded so does not fall under the total cap. So, if the total cap is £1m and delay damages are capped at £1m and you suffer £800k of damage to adjoining land and the delay damages calculation amount to £1.5m then you have the whole of the £800k and £1m of delay damages total recovery £1.8m