HT-2024-LDS-000014 - [2024] EWHC 3067 (TCC)

Fecha: 30-Sep-2024

Background and Evidence

Background and Evidence

This background is based upon the neutral chronology provided by the Claimant and upon the facts agreed between the parties. The majority of the facts were agreed between the parties. There were some extra matters which the Defendant sought to include in the schedule of agreed facts. Those matters were largely agreed by the Claimant. I have taken those matters into account when coming to my decision.

However, I accept the submission made by Mr Beaumont for the Claimant that those facts do not assist me in the interpretation of the contract and whether or not to make the declarations sought.

The Claimant is a company whose business is wireless telecommunication activities. The Defendant is a company whose business is the provision of specialised construction activities. The parties entered into a framework agreement on 20 January 2022 relating to the provision of underground duct laying, jointing chamber and toby box construction and other associated works in the North East of England.

Under the terms of the framework agreement, the Claimant was the employer and the Defendant the contractor. The framework agreement permitted the Claimant to instruct the Defendant to perform works and services for the Claimant in accordance with the terms of the framework agreement. Works and services were to be performed by the Defendant in accordance with each Work Order provided by the Claimant.The

Work Order which this dispute concerns was entered into by the parties on 7 September 2023.

10.

The relevant terms of the framework agreement are as follows:

Obligations

3.2

The Contractor shall not do any work within the Framework Scope until it has received a Work Order for that work.

3.3

Notwithstanding clause 3.2, the Employer makes no representation or guarantee that it will issue a Work Order to the Contractor, and the Employer retains the absolute right to award works within the Framework Scope to other contractors. The Employer shall not in any event be liable to the Contractor whether in contract (including, without limitation, any indemnity), tort (including, withoutlimitation, negligence), breach of statutory duty or otherwise for any loss of income, profits, production, business or opportunity (whether direct or indirect in nature)”

Work Order

4.1

If the Employer requires work to be carried out within the Framework Scope, the Employer shall, at its sole discretion, issue a Work Order instructing the Contractor to carry out and complete the Works in accordance with this Framework Agreement and such Work Order.

4.2

The Contractor acknowledges that the Employer has no liability to pay the Contractor for any works and/or services under this Framework Agreement unless and until the Contractor has signed and executed as a deed the relevant Work Order issued under clause 4.1.

SCHEDULE B – PRICING DOCUMENTS

Definitions

Unit Pricing - The pricing mechanism and approach elected by the Employer as detailed in this Schedule B and in each Work Order 2.Unit Pricing

2.1

The Unit Pricing applicable to each Work Order shall be clearly documented in the Work Order and, at the Employer’s sole option, either be chargeable:

2.1.1

on a fixed Price Per Plot basis, whereby the following shall apply:

2.1.1.1 the Price Per Plot for delivering the requirements of the Work

Order shall be detailed in each Work Order;

2.1.1.2 the Price Per Plot shall be payable for each Plot connected up to

the maximum number of Plots stated in each Work Order, providing all requirements of the Work Order have been duly completed…

SCHEDULE D - WORK ORDER TERMS AND CONDITIONS