This was another instalment of the Vinci / Beumer dispute. The claim was for declaratory relief as to the proper construction of the subcontract between the claimant, Vinci Construction UK Ltd ("Vinci"), and the defendant, Beumer Group UK Ltd ("Beumer"), for the performance of a package of works relating to the baggage handling system at Gatwick Airport’s south terminal. The subcontract was in the form of the NEC3 Engineering and Construction Subcontract (ECS), using Main Option A.

The subcontract provided for sectional completion. There was a different completion date and agreed liquidated damages figure for each section of Beumer’s works. Two sections (Sections 5 and 6) fell into delay and Vinci therefore sought to levy liquidated damages under the subcontract in relation to those sections. The Beumer argued that it was unclear from the subcontract technical documents which specific elements of the delayed work fell into Section 5, and which fell into Section 6 thus, they argued, the liquidated damages clause should be deemed void for uncertainty.

Beumer started the adjudication proceedings and the adjudicator agreed with Beumer, deciding that the subcontract’s provisions for sectional completion and liquidated damages were inoperable because of the lack of certainty and thus unenforceable. Vinci disagreed and commenced Part 8 proceedings for a declaration by the TCC as to enforceability of the provisions relating to sectional completion dates and liquidated damages.

O'Farrell J granteddeclaratory relief in favour of Vinci. She decided that the adjudicator was wrong and the liquidated damages provisions were enforceable. O'Farrell J began her legal analysis with the now-familiar consolidation of principles dealing with contractual construction given in Arnold v Britton [2015] UKSC 36 and Wood v Capita [2017] UKSC 24. Of particular importance were decisions showing the courts’ reluctance to hold a term void for uncertainty (Anangel Atlas v Ishikawajima-Harima [1990] 2 Lloyd’s Rep 526; Whitecap v John H Rundle [2008] EWCA Civ 429) and that a term must be interpreted so as to bring it into harmony with other terms in the context of the whole contract.

As the result, whilst Beumer was correct in pointing out that “baggage” and “remaining work” were relatively vague statements and not defined and that the subcontract was unclear as to what works were covered by Sections 5 and 6, O'Farrell J found this alone was insufficient to render both sections void for uncertainty and to discharge Beumer from the liquidated damages attached to both sections’ completion dates.

O’Farrell J identified that Vinci and Beumer clearly planned for the works to be split into several sections and had agreed on a completion date per section; both parties also consented to delay liquidated damages to be attached to each section’s completion date, acting as a clear incentive for Beumer to complete the works in a timely manner. Consequently, on a proper construction of the sub-contract, the court held that those provisions were "operable and enforceable".

This case serves as a useful reminder that the court will do its best to find an interpretation that gives effect to the parties' intentions.Although the judgment did not discuss the point, by referring the interpretation question to the court in Part 8 proceedings, Vinci successfully reversed the adjudicator's decision.