International Construction Law Review



By Robert Fenwick Elliott. Published by London Publishing Partnership, May 2022. Pages: 1,300. ISBN 978-19-130-19570. Price: Hardback £195.
Extra-Contractual Recoveries by Robert Fenwick Elliott is a two-volume work directed at the gap between the express entitlement in the contract to payment and fair recompense for the work done. As the Author’s preface states: “Very often, the express terms of the contracts for that work have specified no means of recovery, and so it has been necessary to deploy legal arguments that are more subtle.” This theme is filled out in the final section, “Envoi”, essentially an afterword. The standpoint thus expressed is that of the contractor and the remedies available to contractors seeking additional payment. The author brings his considerable practical experience to the task of explaining the law in this area, which is of wide and occasionally uncertain scope.
The organisation of the contents is essentially in five parts moving successively away from the contract itself: Implied and inferred terms, damages for breach and misrepresentation, negligence and other torts, recovery where the contact has failed – frustration and repudiation and other remedies and means of enforcement and miscellaneous. Into this last category is collected statutory remedies, quantum meruit, adjudication and bonds, with a short chapter on procurement. The second volume usefully collects together materials supporting the main volume.
This ambitious scope, covering as it does disparate areas of law, is compounded by the comparative law aspect of the work. This complicates the author’s task as the law in the various common law jurisdictions is not the same. To take two examples. Singapore has not followed the UK Supreme Court decision in Cavendish Square Holding BV v Talal El Makdessi [2015] UKSC 67; [2016] BLR 1; [2016] 1 Lloyd’s Rep 55; [2016] AC 1172; [2015] 3 WLR 1373; 162 Con LR 1 (in departing from the traditional approach to liquidated damages). A second example is the treatment of what Robert Fenwick Elliott terms “restitutionary quantum meruit”. It is difficult to synthesise the law in this area as Australia, New Zealand and England have adopted different approaches to what is still a developing area of law, as the author notes in considering the valuation aspect of quantum meruit.
The text is accessible, written in a lively style and rarely less than interesting. The author takes on the task of explaining whether liquidated damages provisions are subject to the equitable doctrine of relief from forfeiture as the basis for the irrecoverability of penal liquidated damages and inferentially, whether the doctrine is a rule of law or equity. Whilst

Pt 1] Book Review


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