“Subject to Clause 14 (Delays), the Contractor shall complete the construction of the Plant, carry out and complete the Take Over procedures and satisfy the requirements under Clause 33 and Schedule 15 to enable the Project Manager to issue the Take over Certificate on or before the date, or within the period, specified in Schedule 11 (Times of completion) and shall also complete the construction of any Section of the Plant and do any other thing in the performance of the Contract on or before the dates, within the periods, specified in Schedule 11.”
“If the Contractor fails to satisfy the requirements under Clause 33 and Schedule 15 in accordance with Schedule 11 (Times of completion) to enable the Project Manager to issue the Take Over Certificate or the Contractor fails to do any other thing in accordance with Schedule 11 (Times of completion), the Contractor shall pay the Purchaser liquidated damages as specified in Schedule 12 (Liquidated damages for delay), but (subject to Sub-clause 15A) shall have no liability to pay such liquidated damages in excess of the Delay Damages Cap.”
“the Contractor having paid or allowed or becoming liable for a sum or sums in aggregate equal to or greater than the Delay Damages Cap.”
“(a) except as the Project Manager may direct or permit, the Contractor shall forthwith leave the Site and shall have no right to re-enter the Site or to undertake any work, including the rectification of any Defect or to remove any Contractor’s Equipment, Temporary Works or Materials; (b) the Purchaser may himself or through others complete the Works… … (d) the Contractor shall, if so required by the Purchaser and to the extent permitted by the subcontract, assign any subcontract to the Purchaser.”
“Within 90 days after the later of (i) the termination of the Contractor’s employment, and (ii) the completion of the Works under Sub-clause 44.3(b) (including the completion of testing and the remedying of defects, such that the total cost to be incurred by the Purchaser has been incurred) the Project Manager shall … issue to the Purchaser and the Contractor a certificate (a ‘Default Certificate’) which shall give a full statement of account including: (a) all sums due to the Purchaser from the Contractor including any cost incurred by the Purchaser in completing the Works in accordance with Sub-clause 44.3(b) which is in addition to that which the Purchaser would have incurred if the Contractor had completed the Works in accordance with the Contract; and (b) all sums due to the Contractor in respect of work completed by the Contractor prior to the termination of his employment other than any such work of a temporary nature necessitated by such termination and any sum due to the Contractor under Sub-clause 44.4(b). Having allowed for all previous payments made to the Contractor and any sum due to the Purchaser from the Contractor, the Default Certificate shall state the balance due to or from the Contractor.”
“Neither the Contractor nor the Subcontractor shall without the previous consent of the other transfer any benefit or obligation under the Subcontract to any other person in whole or in part, except that: (a) the Subcontractor may without such consent transfer the right to receive any money which is or may become due to him under the Subcontract; and (b) if so required by the Purchaser under the Main Contract the Contractor may assign the Subcontract to the Purchaser.”
“Subject to Clause 14 (Delays), the Subcontractor shall fulfil its obligations under this Subcontract on or before the date, or within the period, specified in Schedule 11 (Time of Completion).”
“If the Subcontractor fails to fulfil any of its obligations under this Subcontract and, to do any other thing in accordance with Schedule 11 (Times of completion), the Subcontractor shall pay the Contractor liquidated damages as specified in Schedule 12 (Liquidated damages for delay), but shall have no liability to pay damages in excess of the maximum (if any) stated in Schedule 12.”
“If at any time before the Subcontract Plant is Taken Over in accordance with Clause 33 (Taking Over) or during the Defects Liability Period, the Contract Manager: (a) decides that any matter is a Defect; and (b) as soon as reasonably practicable notifies the 35. the Subcontractor shall as soon as reasonably practicable make good the Defect so notified and the Contractor shall so far as may be necessary place the Subcontract Plant at the Subcontractor’s disposal for this purpose. The Subcontractor shall, if so required by the Contract Manager, submit his proposals for making good any Defect to the Contract Manager for his approval which shall not be unreasonably withheld.”
“the Contractor shall, if so required by the Purchaser and to the extent permitted by the subcontract, assign any subcontract to the Purchaser.”
“… (b) if so required by the Purchaser under the Main Contract the Contractor may assign the Subcontract to the Purchaser.”
“4.1 If the employment of the Main Contractor under the Main Contract is terminated, the Beneficiary may within 28 days after the date of termination give notice requiring the Sub-Contractor to enter into a new contract (New Contract) with the Beneficiary or its appointee on the same terms as the Sub-Contract, executed as a deed, but with such revisions as the Beneficiary may reasonably require to reflect altered circumstances, for the continuation and completion of the Sub-Contract Works; and the Sub-Contractor shall comply with such notice.”
“M+W and EWHL are in the process of agreeing the deed of assignment and notice of assignment, with the intention that the assignment of the subcontracts takes place within the next week… We understand that EWHL will be engaging in discussions directly with you in relation to arrangements for completion of the Works…”
“…we require you, as the Sub-Contractor, to enter into a New Contract with us, the Beneficiary, subject to agreement on terms.”
“Further to the termination of the M&W Contract with Energy works (Hull) Ltd, and as instructed by Energy works (Hull) Ltd under clause 44.3(d) and/or clause 43.3(b) of the Contract, and in accordance with Clause 9.1(b) of the IChem E Forms of Subcontract we hereby give you notice that we assign the Subcontract with Outotec (USA) Inc. to Energy Works (Hull) Ltd … Energy Works (Hull) Ltd will be in communication regarding ongoing items in respect of your Subcontract…”
“... the responsibility for the subcontracts/purchase orders now rests with EWH for the completion of the Works. For the avoidance of doubt M+W shall not be liable for any costs incurred as a result of any delays to the completion of the Works or costs consequent on any acts of prevention, omissions or breach of any of these assigned subcontracts and purchase orders by EWH.”
“MW hereby assigns to EWH the Subcontracts/Purchase orders listed at Appendix A to this letter.”
“Further to the termination of the M+W Contract with Energy Works (Hull) Ltd, and as instructed by Energy Works (Hull) Ltd under clause 44.3(d) and/or clause 43.3(b) of the Contract, and in accordance with, as appropriate: Clause 9.1(b) of the IChemE Forms of Subcontract … we hereby give you notice that we assign the following Subcontracts/Purchase Orders with Outotec (Usa) Inc to Energy Works (Hull) Ltd, 1 Humber Quays, Wellington Street West, Hull, HU1 2BN: -06 February 2015 -18 November 2015 -20 November 2015 -06 December 2015 … Energy Works (Hull) Ltd will be in communication regarding ongoing items in respect of your Subcontracts/Purchase Orders. It is M+W’s position that the Subcontracts/Purchase Orders listed above with Outotec (USA) Inc were previously assigned by way of the letters between Clyde & Co and Fenwick Elliott of8 April 2019 and12 April 2019 . However, this having been queried, this letter serves as a notice of assignment of those contracts listed above insofar as it has not previously occurred.”
“On13 March 2019 , EWH requested that in accordance with clause 44.3(d) of the EPC Contract, that M+W assigned all subcontracts and purchase orders to EWH. M+W attempted to agree terms of the assignments with EWH but no such agreement was reached between the parties. As a consequence a “bare” assignment of subcontracts and purchase orders has taken place and no terms in relation to these assignments have been agreed. As a consequence of the above, it is unclear as to the effect of assignment due to the parties being unable to agree precise terms. However, it appears that M+W no longer has the benefit of these rights under these subcontracts, including the right to enforce performance of the subcontract and bringing claims. Having exercised its right to assign all subcontracts, EWH has deprived M+W of its ability to enforce performance of the subcontracts and to bring claims. EWH required the assignment of all subcontracts so that it can enforce the contractual rights discussed above. As M+W has detailed previously, M+W expects EWH to enforce its assigned rights against the assigned subcontractors as part of EWH’s ongoing duty to mitigate its losses …”
“(1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice – (a) the legal right to such debt or thing in action; (b) all legal and other remedies for the same; and (c) the power to give a good discharge for the same without the concurrence of the assignor …”
“It will be seen that, in order that the section may apply, three conditions must be fulfilled: (1) the assignment must be absolute and not purport to be by way of charge only; (2) it must be in writing under the hand of the assignor; (3) express notice in writing thereof must be given to the debtor or trustee. The general effect of the section is to allow the assignee to sue the debtor in his own name instead of, as previously, having to sue in the name of the assignor and perhaps having to go to a court of equity to compel his joinder in the action.”
“The argument runs as follows. On any basis, clause 17 is unhappily drafted in that it refers to an assignment of “the contract”
“The majority in the Court of Appeal drew a distinction between an assignment of the right to require future performance of a contract by the other party on the one hand and an assignment of the benefits arising under the contract (e.g. to receive payment due under it or to enforce accrued rights of action) on the other hand. … I accept that it is at least hypothetically possible that there might be a case in which the contractual prohibitory term is so expressed as to render invalid the assignment of rights to future performance but not so as to render invalid assignments of the fruits of performance. The question in each case must turn on the terms of the contract in question.”
“The question is to what extent does clause 17 on its true construction restrict rights of assignment which would otherwise exist? In the context of a complicated building contract, I find it impossible to construe clause 17 as prohibiting only the assignment of rights to future performance, leaving each party free to assign the fruits of the contract. … … parties who have specifically contracted to prohibit the assignment of the contract cannot have intended to draw a distinction between the right to performance of the contract and the right to the fruits of the contract. In my view they cannot have contemplated a position in which the right to future performance and the right to benefits accrued under the contract should become vested in two separate people. I say again that that result could have been achieved by careful and intricate drafting, spelling out the parties' intentions if they had them. But in the absence of such a clearly expressed intention, it would be wrong to attribute such a perverse intention to the parties. In my judgment, clause 17 clearly prohibits the assignment of any benefit of or under the contract.”
“[19] … It is trite law that novation, which involves the addition or substitution of a new party to an existing contract, requires the consent of all existing parties as well as that of the new party himself… … [22] Although there has been some discussion in the authorities about the principles involved, there has hitherto been no real doubt that under English law a party to a contract may effectively give consent in the contract itself to a subsequent novation. The point was touched on in The Argo Fund Ltd v Essar Steel Ltd[2005] EWHC 600 , also a case relating to a syndicated loan, in which it was common ground between the parties that terms similar to those of clause 26 in the present case were effective to achieve the parties' object. The analysis proposed in that case was that of unilateral contract (see paragraphs 51-52), which I find persuasive … The provisions of clause 26 in this case cannot possibly be described as nebulous and there is no uncertainty about the terms of the contract to which a novation gives rise.”
“(i) … as novation does not as such involve a transfer of rights or obligations, the word ‘transfer’ is not apt to describe a requirement to novate. (ii) … If what was intended was a right to require MM to novate with MCL or the design and build contractor yet to be appointed, one would expect much clearer wording than simply, ‘we shall be entitled to transfer this Appointment’. One would need wording which explained that the appointment would be extinguished and replaced by a new one. On balance, I consider that ‘assign or transfer’ were synonymous.”
“… there are four main differences. First, a novation requires the consent of all three parties involved … But (in the absence of restrictions) an assignor can assign without the consent of either assignee or the debtor. Secondly, a novation involves the termination of one contract and the creation of a new one in its place. In the case of an assignment the assignor's existing contractual rights are transferred to the assignee, but the contract remains the same and the assignor remains a party to it so far as obligations are concerned. Thirdly a novation involves the transfer of both rights and obligations to the new party, whereas an assignment concerns only the transfer of rights, although the transferred rights are always "subject to equities". Lastly a novation, involving the termination of a contract and the creation of a new one, requires consideration in relation to both those acts; but a legal assignment (at least), can be completed without the need for consideration.”
“The principle that the burden of a contract cannot be transferred so as to discharge the original contractor without the consent of the other party means that, as a general rule, the assignee of the benefit of a contract involving mutual rights and obligations does not acquire the assignor’s contractual obligations… … However, where contractual rights are assigned, the extent of those rights will be defined by the original contract… The conditional benefit principle arises where the right assigned is conditional or qualified, the condition being that certain restrictions shall be observed or certain burdens assumed. The restrictions or qualifications are an intrinsic part of the right which the assignee has to take as it stands. The question whether a contract creates a conditional benefit is one of construction.”
“… where a right under a contract was conditional upon, or qualified by, performance of some obligation in return for which the right has been granted, an assignee of the benefit of such right will only be entitled to exercise the right subject to performance of the burden: Tito v Waddell (No.2)[1977] Ch 106 , 290, per Megarry V-C; Rhone v Stephens[1994] 2 AC 310 , 322, per Lord Templeman; Davies v Jones [2010] 2 All ER (Comm) 755, para 27, per Sir Andrew Morritt C. That principle is referred to in the authorities as “the conditional benefit principle”.”
“Rather, it involves the imposition by law on a contractual assignee or successor in title of a positive obligation under the relevant contract or conveyance, notwithstanding the absence of any contractual or estate obligation to the third party beneficiary of the obligation.”
“[92] … the general principle, enunciated uncompromisingly by Lord Browne-Wilkinson, is not, in my view, wholly inflexible. Thus if the parties to an agreement expressly agree in it that one party may assign both the benefits and the obligations of performing the contract to another then in my opinion there can be no legal objection to the efficacy of such an assignment, as an assignment, if effected thereafter. For another thing, the doctrine of conditional benefit, as discussed by Gloster LJ and to which I will come, constitutes another potential modification to any socalled general principle. [93] Be that as it may, it seems to me important that the authorities in this field are clear that ultimately what is critical is the interpretation of the contractual arrangements in question.”
“When any claim for contribution falls to be decided the following questions in my opinion arise: (1) What damage has A suffered? (2) Is B liable to A in respect of that damage? (3) Is C also liable to A in respect of that damage or some of it? … I do not think it matters greatly whether, in phrasing these questions, one speaks (as the 1978 Act does) of "damage" or of "loss" or "harm", provided it is borne in mind that "damage" does not mean "damages" (as pointed out by Roch LJ in Birse Construction Ltd v Haiste Ltd[1996] 1WLR 675 , at p 682) and that B's right to contribution by C depends on the damage, loss or harm for which B is liable to A corresponding (even if in part only) with the damage, loss or harm for which C is liable to A. This seems to me to accord with the underlying equity of the situation: it is obviously fair that C contributes to B a fair share of what both B and C owe in law to A, but obviously unfair that C should contribute to B any share of what B may owe in law to A but C does not.” 115.Per Lord Steyn at [27]: “… The critical words are "liable in respect of the same damage." Section 1(1) refers to "damage" and not to "damages": see Birse Construction Ltd v Haiste Ltd[1996] 1 WLR 675 , 682 per Roch LJ. It was common ground that the closest synonym of damage is harm. The focus is, however, on the composite expression "the same damage". As my noble and learned friend Lord Bingham of Cornhill has convincingly shown by an historical examination the notion of a common liability, and of sharing that common liability, lies at the root of the principle of contribution: see also Current Law Statutes Annotated (1978), "Background to the Act" at p 47. The legislative technique of limiting the contribution principle under the 1978 Act to the same damage was a considered policy decision. The context does not therefore justify an expansive interpretation of the words "the same damage" so as to mean substantially or materially similar damage. Such solutions could have been adopted but considerations of unfairness to parties who did not in truth cause or contribute to the same damage would have militated against them. Moreover, the adoption of such solutions would have led to uncertainty in the application of the law. That is the context of section 1(1) and the phrase "the same damage". It must be interpreted and applied on a correct evaluation and comparison of claims alleged to qualify for contribution under section 1(1). No glosses, extensive or restrictive, are warranted. The natural and ordinary meaning of "the same damage" is controlling.”
“MW does not advance the case that its liability for LADs under the Main Contract and Outotec’s liability for LADs under the Sub-Contract represent the same damage for the purposes of its contribution claim under the Act.”
“… we are dealing here with the liquidated damages claim which is sought to be passed on that in a sense 9.1 is a general application, it is denied that MW has any proper basis [in which] to claim liquidated damages pursuant clause 15.1 either as a contribution claim since the liquidated damages claimed by MW do not relate to the same damages [sic: damage as] any liability MW has to EWHL arising out of the particulars of claim. That, I think, in the light of Mr Moran’s intervention this morning, is now conceded to be correct and/or (b) as a claim under the SubContract itself since MW has assigned the Sub-Contract to EWHL and no longer has any rights to claim under the same… 136. … 137. Now in view of Mr Moran’s concession this morning, I am not quite sure, subject to issue 1, how much of issue 2(i) remains live. I know that that will become clear during the course of his submissions, but just to set out our position briefly and I will not labour it in the light of the concession on the assumption which issue 2 assumes that MW have no contractual claim, we say it is perfectly clear that Outotec cannot under any circumstances be liable under the 78 Act for liquidated damages which arise under the Main Contract.”