(D) INADEQUATE PERFORMANCE
Where the claimant provides a service to the defendant but it is performed inadequately or late,258 should this be a matter which is taken into account when valuing the benefit received by the defendant? As a matter of principle the answer should be ‘yes’, since the defendant should be able subjectively to devalue the benefit which was received. Consequently, if the defendant considers the service to be less valuable because it was poorly performed or was performed late so that the defendant incurred additional expense or liabilities to third parties, this should be taken into account when valuing the service. Of course, if the defendant had freely accepted the service or the enrichment was treated as incontrovertibly beneficial, the objective value of the benefit should be adopted. Some judicial support for this approach can be found in the decision of the Court of Appeal in Crown House Engineering Ltd v Amec Projects Ltd.[1] Although Bingham LJ said[2] that he was agnostic on the point, he suggested that the courts should have regard to the claimant’s acts or omissions in the provision of the service if they depreciated or even eliminated the value of the services to the defendant. This is an entirely appropriate response to the problem, since it is consistent with the fundamental principles concerning the identification and valuation of an enrichment.
