A con­struc­tion com­pa­ny has lost its fi­nal ap­peal over al­most $12 mil­lion in ad­di­tion­al fees for a project it com­plet­ed for the Ur­ban De­vel­op­ment Cor­po­ra­tion of T&T (Ude­cott) two decades ago.

De­liv­er­ing a judg­ment, yes­ter­day morn­ing, five Law Lords of the Unit­ed King­dom-based Privy Coun­cil re­ject­ed Dip­con En­gi­neer­ing Ser­vices Lim­it­ed’s ap­peal against Ude­cott.

In the ap­peal, Dip­con claimed that High Court Judge Ricky Rahim and three Court of Ap­peal judges were wrong to dis­miss its claim in 2017 and 2023.

The Board agreed with the con­cur­rent find­ings of fact made by the lo­cal courts.

The law­suit cen­tred around a con­tract for en­gi­neer­ing ser­vices for Orop­une Gar­dens Phase II, a Hous­ing De­vel­op­ment Cor­po­ra­tion (HDC) res­i­den­tial com­mu­ni­ty in Pi­ar­co de­vel­oped by Ude­cott.

The $26 mil­lion con­tract was signed in March 2003 and the work was com­plet­ed in Ju­ly 2006.

In 2009, the com­pa­ny and Ude­cott held dis­cus­sions over set­tling the fi­nal ac­counts for the project.

Al­most a year lat­er, Ude­cott agreed to pay Dip­con $18,816,233.94 to set­tle its re­main­ing claims in re­la­tion to the project.

How­ev­er, Dip­con claimed an ad­di­tion­al $11,255,800 as it con­tend­ed that it in­curred in­creased costs for us­ing heavy equip­ment to com­plete its work.

Ude­cott’s Board of Di­rec­tors re­fused the re­quest as it claimed that it had fac­tored in $3,500,000 for the in­creased costs when it made its to­tal set­tle­ment of­fer.

Dip­con filed the case in which it al­leged that there was no re­quire­ment for Ude­cott’s board to ap­prove its ad­di­tion­al re­quest un­der the spe­cialised FIDIC con­struc­tion con­tract that was used for the project and is com­mon­ly used in in­ter­na­tion­al con­struc­tion projects.

Dame Jan­ice Pereira, who wrote the judg­ment, re­ject­ed the ap­proval ar­gu­ment ad­vanced.

“In the Board’s view, there is no room for ar­gu­ing that board ap­proval was ei­ther un­nec­es­sary or, as coun­sel put it, “a rub­ber stamp” ex­er­cise when the very word­ing of sub-clause 53.4 of FIDIC it­self in­cor­po­rates the tak­ing of a de­ci­sion by Ude­cott in cir­cum­stances sep­a­rate and apart from the pre­scribed sub­mis­sion and pay­ments pro­ce­dure cer­ti­fied by the en­gi­neer set out un­der the con­tract,” she said.

She al­so re­ject­ed Dip­con’s al­ter­na­tive case al­leg­ing that the board ap­proval re­quire­ment was waived by how it and Ude­cott con­duct­ed its con­trac­tu­al deal­ings.

“It is clear from the ev­i­dence es­tab­lish­ing the par­ties’ course of deal­ing sup­port by Dip­con’s own ac­knowl­edge­ment, that board ap­proval was re­quired be­fore pay­ment could be made,” she said.

Dame Pereira not­ed that she and her col­leagues did not need to con­sid­er Ude­cott’s po­si­tion on the case based on their re­jec­tion of Dip­con’s claims.

“Af­ter hear­ing Dip­con’s ar­gu­ment it be­came clear to the Board that Dip­con could not suc­ceed on ei­ther of the bases put for­ward in its case,” she said.

Dip­con was rep­re­sent­ed by Tom Poole, KC, and Adam Ri­ley. Ravin­dra Nan­ga, SC, John Paul Na­hous, and Sasha Dar­beau rep­re­sent­ed Ude­cott.