(a) Recovery of what are said to be additional costs required to comply with the original contract specification as a result of an alleged agreement to provide materials of a lesser specification;

(b) An extension of time of 200 days and associated prolongation costs for the period between the revised completion date of 17 November 2022 and 5 June 2023 which was the date of the taking-over certificate; and

(c) Additional payments for variations and the reversal of what are said to be illegitimate deductions.

(a) Disputes the change of specification claim;

(b) Asserts that the agreement which provided for a revised completion date settled not merely time claims but all contractual claims prior to its date;

(c) Disputes the majority of the claimed extension of time on various grounds and counterclaims for:

(d) Substantially accepts the amount of actual prolongation costs incurred on a daily basis but disputes the basis for recovery of head-office overheads;

(e) Disputes some but not all of the claimed variations and asserts an entitlement to repayment of some sums granted in respect of what are said to be illegitimate variations;

(f) Asserts an entitlement to make deductions or claim damages for works

(g) Claims to be entitled to amounts paid to DEWA for water and electricity; and

(h) Claims sums to be due in respect of remedying defects arising during the Defects Liability Period for Defective Waterproofing.

(a) The change in specification claim which depends upon an analysis of the contract formation and the basis of the claim;

(b) The extent of the settlement which granted an extension of time;

(c) The claims in respect of delay including prolongation, head-office overheads, liquidated damages, supervision costs and rental costs after the agreed extension;

(d) The claims for variations;

(e) The counterclaims for incomplete and non-executed works;

(f) The counterclaims for defective works;

(g) The issues in respect of the DEWA payments; and

(h) The defects liability claim in respect of defective water-proofing.

(a) 2 initial offers of AED 34,398,474.63 and 25,726,830 respectively under cover of a letter dated 9 December 2021 (page 5763);

(b) A revised offer of AED 21,236,975.23 under cover of an email dated 2 December 2021 (page 5995);

(c) A further revised offer for AED 21,236,975.23 under cover of an email and letter dated 26 December 2021 (page 6121); and

(d) A Best and Final Offer of AED 18,191,560.11 on 28 December 2021.

(a) ENI issued a letter of acceptance in respect of the Best and Final Offer on 4 January 2022 which was counter-signed as being accepted on 10 January;

(b) BAM issued a Notice to Proceed identifying the Contract Commencement Date as being 17 January on the same day;

(c) A base-line programme was submitted on 11 March 2022;

(d) The parties entered into the Construction Contract on 14 March 2022;

(e) The works were delayed for a number of reasons and Architeriors claimed to be entitled to variations and additional payments;

(f) On 28June 2022, the parties agreed the appointment of an adjudicator in order to seek to resolve a dispute concerning an alleged variation for plaster works; and

(g) On 16 August 2022, the Adjudicator decided that Architeriors was not entitled to a variation.

(a) had four points under the heading “Points of Discussion”; namely

(b) Had seven paragraphs under the heading “Conclusion”:

(a) A valid extension of time was granted until 17 November 2022;

(b) All time-related claims as at the date of the MOM are settled;

(c) That ENI has no entitlement to delay damages prior to 30 November 2022.

(a) On 23June 2023 BAM issued a letter to Architeriors identifying incomplete works in respect of the fire alarm with total sums to be deducted of AED 36,925 plus any other sums required to complete the fire alarm works;

(b) On 25 June 2023, Architeriors issued its “Statement at Completion” (which sought a total amount of AED 9,745,487.74 after total receipts of AED 17,979,726.30 (including direct payments to suppliers) including:

(c) After proceedings were issued, ENI issued an extensive counterclaim including in respect of items where no complaint had previously been made.

(a) The parties prepared an initial bundle, without book-marks, running to 51,545 pages which was supplemented during the trial. The bundle could not be described as easy to navigate. Where I refer to numbers in brackets, the references are to this electronic bundle.

(b) Architeriors called:

(c) ENI called:

(a) Mr Elsadig’s witness statements consisted to a considerable of recitation of documents and argument in a way which was not of real assistance and made it difficult to understand what matters were within his own knowledge and what consisted of mere recitation of ENI’s case;

(b) The extent to which both factual witnesses were able to provide real assistance in the resolution of the disputes was limited. As is so often the case, the documentary record provides the primary basis for resolving the disputes between the parties; and

(c) Despite the volume of expert evidence and the helpful joint statements, there were a surprising number of issues upon which the experts were not able to provide real assistance due to uncertainty as to the underlying factual position.

(a) It was first put forward in the Statement at Completion referred to above where:

(b) In the Particulars of Claim, it was alleged

(c) The consolidated claim attached to the Particulars of Claim at Appendix C (171-172) showed the variances between the tender bids of Architeriors and then had a column with “actual difference” adding up to the claimed figure – which was taken from a breakdown on the previous pages for items largely entitled “Alternative Specification” but with some other descriptions;

(d) In the Claimant’s Written Opening, the claim was put on the basis that:

(a) Mr Khayer was the Architeriors’ Project Manager until January 2024 and attended 3 budget meetings with representatives of ENI and BAM prior to contract award;

(b) The substance of his evidence in his first witness statement was:

(c) In his second witness statement (24468), Mr Khayer states:

(d) In cross-examination he accepted:

(e) In Mr Clark’s report dated 5 June 2025 he reviewed 9 architectural material design submittals and reviewed work by Mr McDonald to see whether 7 MEP or Building services material submittals to see whether BMA varied the contract specification (45653) and considered that with 3 exceptions (high pressure laminate, PU paint and paint for wardrobe shutters) there was no change;

(f) In Mr Clark’s supplemental report of 16 June 2025, he:

(g) In his first report Mr White of 3 June 2025 produced a sample of what was said to be alternative specifications from Mr Khayer (29743) and gave very tentative evidence based upon the same.

(a) That the alleged claim would be wholly uncommercial – effectively treating the contract as remeasurable with an agreement to accept a lower level of specification as the work progressed which was unparticularized at any time prior to delivery;

(b) That the agreement is unsupported by documents and inconsistent with both the express terms of the Letter of Appointment and Contract which contained entire agreement terms; and

(c) That the parties did not act in accordance with the alleged agreement by, for example, Architeriors making claims as the contract progressed but only made the claim in the final payment application in June 2023.

(a) He was not directly involved in the pre-award discussions; and

(b) As identified above, much of his evidence consists of recitation of documents and adds nothing to those documents.

(a) First, as is apparent from the history set out above, the basis of the claim has not been consistent. The pleaded basis of the claim relies on ENI proposing a new set of specifications to which Architeriors responded. However, Architeriors’ case at trial is inconsistent with this. There was never a proposal by ENI of alternative specifications. Furthermore, no such contemporary specification was ever sent by Architeriors to ENI or BAM;

(b) Secondly the alleged agreement that specifications would be provided in the course of the project on an undefined basis is wholly uncommercial and inconsistent with the formal insistence on precise documents forming the contract including drawings, a Bill of Quantities and detailed specification. No precise details are given as to when the alleged agreement was reached;

(c) Thirdly the alleged agreement is also inconsistent with the provisions of the Letter of Acceptance and Contract both of which included the Specification as a contractual document and contained entire agreement clauses;

(d) Fourthly, although it is a fair point that Mr Elsadig was not directly involved in the pre-award negotiations:

(e) Fifthly, Architeriors did not, contemporaneously, object to signing the specification on the basis that they did not agree to it – The minutes of meeting for 27 April 2022, by way of example (19955) refer to reluctance due to the size of the specification rather than an objection to the specification itself;

(f) Sixthly Architeriors’ behaviour post contract was inconsistent with the alleged agreement. They did not put forward an alternative specification and did not complain in writing when BAM insisted on compliance with the specification. They did not put in claims for variations based upon the alleged alternative specification (although did make claims based on what were said to be variations from the contract specification);

(g) Seventhly, the first and only reference to what is now said to be the claim prior to completion of the contract works was in a meeting with the Adjudicator in July 2022 in two lines which reads “[Architeriors] stated concern about AI contract which is related to alternative offer. AI stated that the history for alternative BOQ and contract are not according to original Specification”. This does not make plain that the contractual specification was disputed or put forward any contractual justification for what is now sought; and

(h) Eighthly, the claim which was put in, after the date when Architeriors contend that they finished the work, was wholly unclear as to its contractual basis.

(a) Architeriors were very keen to secure the contract – otherwise they would not have been prepared to reduce their price as significantly as they did;

(b) Architeriors were fully aware that they would not be appointed unless they accepted a contract figure at or about AED 18m which was ENI’s budget;

(c) Architeriors knew that they would not be appointed with a wholly undefined specification but never provided the same; and

(d) Architeriors were hopeful that they would be able to make claims but never stated prior to completion of the works that they considered that they had the benefit of the change of specification claim. At best this was something which they thought they might be able to raise in due course. For the avoidance of doubt, I do not consider that this course of conduct could be said to be acting in good faith.

(a) 58 days of delay in the period 6 September 2022 to 12 January 2023 based on delay to joinery works and installation of sinks as a result of a late variation;

(b) 54 days of delay due to delays to receipt of the Building Completion Certificate in the period 13 January 2023 to 8 March 2023; and

(c) 88 days of delay in the period 9 March 2023 until 12 April 2023 due to delays to the issue of the Taking Over Certificate, it being said that the works were substantially complete by 12 April.

(a) That the Revised Baseline Programme with a data date of 5 September 2022 is the appropriate programme to measure progress after the MOM;

(b) Table 2 setting out their respective positions in respect of delay based on this programme with:

(a) It is plain that there was every incentive on the parties, and in particular, Architeriors to progress as fast as possible given that substantial works had already been done and the revised completion date;

(b) It is common ground that there was a variation to kitchen sinks and associated joinery in the flat with the relevant dates being (6948):

(c) Mr Khayer’s evidence is that Architeriors chased the Engineers for the relevant details between 22 September and 20 October 2022;

(d) Given the limited time until completion, many trades but in particular the electrical and joinery works were close to the critical path as is shown by the graphs in Mr Tousiakis’s first report at around 40255;

(e) Mr Tousiakis also accepts that there were discrepancies in the available records although considers that these showed that for at least part of the period electrical works were more delayed than the joinery works;

(f) Mr Tousiakis could not identify any positive causes of delay to the electrical works explaining their progress. It does appear from the variation claims that there were a number of variations in relation to relatively small late-stage elements of the electrical works which may have affected completion; and

(g) The overall picture provided by the evidence is of a somewhat confused site with other contractors working alongside Architeriors and changes being sought to be made in order to finalise the overall works to the Amber Residency.

(a) The evidence is again somewhat confused as to what was actually occurring on site. It appears clear that works were being carried out by other contractors in relation to the swimming pool and external works which had a material impact on the completion and re-letting of the Amber Residency;

(b) There were delays by Architeriors in respect of the connection of solar panels although it seems that some of these delays were caused by other contractors’ works;

(c) There were delays by BAM in updating information and allowing applications by Architeriors to the Dubai Municipality so as to allow for inspections; and

(d) The biggest single issue is as to whether Architeriors’ work was substantially complete by about 9 March 2023 so that a Taking Over Certificate should have been issued or whether this was due to delays in modifications to the Fire Alarm system and control panels to various items of equipment.

(a) Mr Khayer’s evidence is:

(b) Mr Elsadig produced the relevant correspondence during the period which does suggest that outstanding works were relatively minor and that works were dependent on interfaces with other contractors (6492);

(c) Much of the evidence given orally referred to outstanding works in relation to fire alarms and access panels with Mr Tousiakis being of the view that occupation of the first apartment was driven by completion of the fire alarm system (51545);

(d) However:

(a) Both experts are agreed that there were delays due to

(b) Further the experts are agreed that there was a minimum period of 8 days of delay by reason of Architeriors not being ready to accept carry out works (with Mr Tousiakis considering the delay was longer).

(a) There is a minimal difference between the quantum experts as to the actual daily cost of indirect time-related resources amounting to only AED 26 per day. As indicated during the hearing, I will split the difference between the two figures so that the daily rate is AED 4,564,05 or a total of AED 839,850.52 for the 184 day period;

(b) Architeriors seeks to claim head-office overheads based on the Emden formula which the quantum experts have agreed on a “figures as figures” basis as being AED 1,803,839.30 for 200 days and would therefore be AED 1,659,532.16 for 184 days;

(c) It is agreed that the contract conditions preclude a claim for loss of profit in addition to loss of head-office overhead;

(d) ENI disputes the entitlement based on the fact that there is no evidence that Architeriors turned work away and suggests as a possible alternative the Eichleay formula which would produce a figure lower than that produced by the Emden formula.

(a) First it is for Architeriors to prove its loss and it has had every opportunity to do so but has not taken it.

(b) Secondly, I consider that the circumstances in which Architeriors bid for the present contract with dramatic reductions in price and a willingness to sign up for onerous conditions suggests that it may well be that there were no other opportunities open to it.

(a) First whether actual costs incurred in respect of payments to BAM are recoverable; and

(b) Secondly whether there are any grounds for adjustment under Article 390 of the UAE Civil Code.

“(1) The contracting parties may fix the amount of compensation in advance by making a provision therefor in the contract or in a subsequent agreement, subject to the provisions of the law.

(2) The judge may in all cases, upon the application of either of the parties, vary such agreement so as to make the compensation equal to the harm, and any agreement to the contrary shall be void.”

(a) The selection of the rate for damages in a case such as this will affect the risk and pricing of the contract;

(b) The allocation of risk is an important function of such a contract; and

(c) The selection of the rate will be important to avoid difficulties and uncertainties of proof and should simplify the process of dispute resolution.

(a) Variation 1 – Additional Plaster Works with a claim for AED 494,811.45. This claim was first submitted on 3t May 2022 and rejected. It was also rejected by the Adjudicator. On the basis of my conclusions as to the effect of the MOM, it was settled by the same and no sum is due.

(b) Variation 23 – Additional cables and conducting for emergency exit lights. It is accepted that there was a variation but the dispute is as to amount with Architeriors claiming AED 28,108.68 and BAM having certified AED 14,054.68. There is a difference between the experts as to whether to base the assessment on a re-measurement or a contemporaneous quotation. The re-measurement seems unsatisfactory, and I prefer Mr White’s assessment based on contemporaneous documents at ED 25,108.68. An additional sum of AED 11,054 is therefore due.

(c) Variation 24 – Electrical Works – Architeriors claims AED 323,883.21 on the basis that new cables were provided instead of using existing wires and conduits as set out in Bill of Quantities No 16 at page 16.10. Although there was no formal instruction from BAM, there was a contemporaneous claim and recognition of the change by letter dated 19 January 2023 and BAM certified AED 56,734 on account. Further the documents support the fact that the lighting control system was omitted. The amount is supported by Mr White but disputed by Mr Corelj on the basis of lack of evidence and illegibility of the drawings. Mr Elsadig accepts that some cable was missing but asserts that the claimed quantities are far too high. His secondary assessment is AED 224,638.72 based on quantities recorded on an invoice. I accept Architeriors claim on the basis of Mr White’s evidence based on an evaluation oftender quantities and contemporaneous evidence. An additional AED 267,149.21 is due.

(d) Variation 25 – Light Fittings. This claim was originally put forward on the basis that additional costs were incurred as a result of the selection of an alternative supplier by letter dated 1 July 2022 with quantification of AED 303,258.00. It appears that Architeriors also asserts that there was a change in quantities with a difference between the quantities and those shown in the Bill of Quantities although the precise basis and nature of the claim is not clear. I do not consider that Architeriors has established any entitlement to make the claim given the MOM. Further clause 12.5 of the Particular Conditions puts the risk of discrepancies between the drawings and the Bill of Quantities on the contractor which is a further reason for the claim to fail.

(e) Variation 27 – Control Panel BMS Modification. A provisional sum was included for this item on the basis that the design was not complete at tender stage. A provisional variation order was provided on 7 March 2023 in the sum of AED 31,050 being AED 27,000 plus 15% OHP. An amount of AED 18,630 was paid on account. I consider the variation to be valid and properly claimed in the amount sought. An additional AED 31,050 is due.

(f) Variation 30 – Cutting in False Ceiling – AED 13,305. Access was required to be provided as set out in ENI’s email of 10 January. There was no requirement for access to this work and I consider this a valid variation. The quantum is agreed and an additional AED 13,035 is due.

(g) Variation 31 – External paint – AED 460,661.51. The contractual basis for this claim is confusing and unclear. It is not supported by either quantum expert. It appears to arise out of a reduction agreed at tender. Insofar as it is based on additional quantities, the risk falls on Architeriors. I do not consider that there is any basis for the claim.

(h) Variation 35 – Control Panel Modification to the FAHU, Pumps and Garbage Fan. The Engineer considered this modification to be duplicated with VO 27 but this is incorrect. The panels were different. The variation is valid for the same reasons and the quantum is agreed at AED 58,408.21. An amount was paid on account of AED 45,548.97, an additional AED 58,408.21 is due.

(i) Variation 36 – Paint for Staircase. This was not shown on any drawing and it appears clear that painting was required. It is said to have been made necessary by reason of damage by Architeriors, but there is no evidence of this. There is a small difference between the quantum experts as to the quantum. I prefer the evidence of Mr White which is in accordance with contemporaneous quotations and find the sum due to be AED 30,750 which is an additional sum to that accepted by ENI.

(j) Variation 37 – Removal and reinstallation of 2 FCUs. This was necessary for testing and commissioning by others. I consider it to be a valid variation. I accept Mr White’s evaluation of AED 9,500 which is an additional sum.

(a) These items were ones accepted by BAM during the course of the contract. Although ENI is, of course, entitled to challenge these matters, the fact of acceptance does suggest that there is likely to have been a basis for the variations given BAM’s knowledge of and involvement with the project.

(b) The pleading position in relation to these four items is rather unsatisfactory as neither side identified a positive case in relation to them;

(c) VO 20 related to the relocation of sprinklers in the basement where there was a difference between ceiling levels which was approved by BAM. ENI objected in its Defence and Counterclaim to this work on the basis that it was implicit in the drawings and details provided. I consider this to be unrealistic. The works were meant to be fully designed, and BAM assented to the change. There was a contemporaneous assessment of cost at AED 13,455 and I consider this sum to be due in addition to that accepted by ENI.

(d) VO 26 – PV Solar System additional requirements. The sum claimed and accepted was AED 29,062 for additional Dubai Municipality requirements. The sum was originally a provisional sum and there appears no basis to challenge the variation. Its amount is agreed at AED 29,062.20 which is therefore payable in addition to the sums accepted by ENI.

(e) VO 28 – Paint to External Planters – AED 11,471.25. The planters had originally been due to have a plain finish. The provision of paint was therefore a variation. Mr Corelj assesses the proper cost of this at AED 24,947.90. As this variation has been opened up (44861), I accept this sum which is due in addition to that accepted by ENI.

(f) VO 33 – Water tank treatment - AED 76,935.00. The rejection is based upon the assertion that the circulation pump fell within Architeriors scope of work but it appears that the wrong pump is being referred to. Although Mr Corelj is uncertain as to the scope of this variation, the contemporaneous acceptance by BAM suggests its validity and I accept that it is due.

(a) The following items are agreed – Numbers 5, 6, 8, 9, 10, 14, 15 and 16 where the total is AED 106,106.63 for those items where there is a deduction to be made;

(b) I reject the following deductions:

(c) I accept the following deductions to the extent shown

(d) The total deductions are accordingly AED 248,113.26.

(a) I do not accept the deduction for the cold-water aluminium pipe cladding or the SMATV antenna installation or their method of assessment. There is no satisfactory evidence of the alleged incompleteness.

(b) I also do not accept the costs involved in the emergency exit lights, testing or commissioning which appear related to last-minute changes with no opportunity given to Architeriors to carry out the works;

(c) It follows that the deduction is AED 53,621.

(a) Clause 4.19 suggests that there will be mutual agreement on a metering system between the parties;

(b) The Tender Review Observations jointly agreed between the parties shows that the parties agreed only that payment for water used for Architeriors works was to be by Architeriors (3161);

(c) No attempt was made to levy charges during the contract – no doubt reflecting this agreement;

(d) There is no evidence that sums were due for water used by Architeriors; and

(e) The difficulties in understanding the position are reflected by various different figures produced by the quantum experts.

(a) That Architeriors did not install the flooring correctly in bathrooms with the correct falls (6976);

(b) That problems were rectified by Architeriors in 29 apartments;

(c) That ENI would have preferred Architeriors to carry out the works but that the matter became urgent and ENI had to seek an alternative contractor; and

(d) That Al Shiwari were engaged as an alternative contractor to undertake the works.

(a) That all notices provided to Architeriors were acted upon and the problems rectified;

(b) That the original water pipes providing water to the building were not altered and appeared to have caused problems; and

(c) That Architeriors were not informed of mould problems and would have remedied them if made aware of the same.

(a) Records the carrying out of remedial works in relation to shower draining;

(b) Is based upon apartment 202 for which he was provided with photographic and video evidence (although referred to evidence in another 20 apartments);

(c) Identifies required remedial work for the work re shower draining;

(d) Refers to water pipe connections but says the relevant drawings are illegible (45642);

(e) Identified what appeared to be defective connections; and

(f) Responded to Mr Khayer’s evidence (47085).

(a) Identified that works had been undertaken in 23 apartments at a cost of AED 1,474,973.58 (44818); and

(b) Estimated that future works of AED 1,226,472.67 might be required.

(a) In respect of Apartment 202 a notification was given on 10 March 2023, but a quotation provided on 30 May 2025 more than two years later (Item 20 at 44931);

(b) Purchase orders were often given months after work was done (see eg 23870 being an order of 5 June 2024 for work on 4 March 2024);

(c) There is no clear evidence of notification being given of individual defects as one would expect; and

(d) It is clear that Architeriors did carry out substantial work when notified of problems.