JDP Drapala & Partners, representing Madrid's Acciona Construccion S.A. and Mostostal Warszawa S.A., has obtained a partial judgment from the Appellate Court in Warsaw amending the judgment of the first instance court and ordering public employer GDDKiA to pay the firm's clients a total of over PLN 23 million (including interest).
According to JDP, "this amount includes a return of the full liquidated damages for delay in performing works involving the construction of a section of one of the Polish motorways. The Appellate Court agreed with the argumentation presented by JDP attorneys that the liquidated damages were groundlessly charged and set off by the employer."
The case involved the relationship between liquidated damages for delay and a claim by contractors for an extension of the Time for Completion in FIDIC contracts subject to Polish law. According to JDP, "in the proceedings the opposing counsels argued for instance that when submitting notifications (during the contract performance) of claims for the extension of the Time for Completion, the contractor did not meet the deadline set out in clause 20.1 FIDIC. According to them, this resulted in the expiry of this claim, and hence made it impossible for the contractor to rely on the right to extend the deadline for works completion to defend against the liquidated damages for delay in meeting this deadline."
"The Appellate Court agreed with our argumentation that a contractor’s claim for extending the deadline for works completion under FIDIC contracts should be legally separated from an assessment of liquidated damages for delay in meeting this deadline by the contractor," explained JDP Partner Przemyslaw Drapala, who led the firm's team in the case. "Even if it turns out that the contractor did not meet the deadline for notifying this claim (clause 20.1 FIDIC), the contractor may effectively defend against liquidated damages by relying on the factual circumstances underlying the claim. The fact that the Appellate Court accepted this argumentation strengthens the legal position of contractors when it comes to defending against liquidated damages."
In addition to Drapala, the JDP team included Partner Wojciech Bazan and Associate Mateusz Jaworski.