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Articles from the Silver Shemmings Ash Team on contractual matters, recent case law changes and items of interest in the construction and property world

Brandon Silver’s ‘A Case In Point’

January 11, 2021 | Silver Shemmings

Brandon Silver’s ‘A Case in Point’ series reviews an interesting case, the legal principle determined in the case and its relevance and/or importance to the construction industry

Buckland v Bournemouth University Higher Education Corporation

The claimant was a professor who worked at the defendant university. He marked a number of exam papers that were later checked and confirmed by a second marker and the board of examiners to ensure consistency. The result was that the claimant had failed 14 students. Without consulting the claimant, the course leader chose to have the papers remarked. The claimant later discovered this and considered it as an attack on his integrity. Subsequent to the actions of the course leader, the university set up an inquiry which justified the claimant’s original marks. The claimant resigned, however, and claimed constructive dismissal.

The Court of Appeal determined that the university’s actions (the course leader choosing to have the papers remarked without consulting the claimant) amounted to a repudiatory breach of the implied term in the claimant’s employment contract of trust and confidence. It was further held that the subsequent inquiry set up by the defendant had not cured the original repudiatory breach. The important principle to take from this case is that if one party repudiates the contract, it cannot later repair the situation. The only relevant question in this case was, therefore, whether the claimant had affirmed the contract by treating it as still in force or had treated the contract as finally and conclusively discharged. In this case, the court determined that the latter applied.

Applying this to the construction industry, if a subcontractor abandons site without justification, this will be regarded as a repudiatory breach, which, if accepted by the contractor, will result in termination of the contract and a claim for damages in favour of the contractor. The subcontractor’s actions cannot be repaired by it subsequently returning to site. A subcontractor should, therefore, only abandon site in circumstances where such action is justified and will not be considered as amounting to a repudiatory breach.

If you have any queries concerning termination and/or repudiation of contract you can contact Brandon directly at brandonsilver@silverllp.com or via 0207 167 6602

Author Brandon Silver has recently completed the LLM Legal Practice (Solicitors) Course at BPP Holborn University, and joined the team as a trainee in order to qualify as a Solicitor specialising in Construction and Property Law


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