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

In short, no. Whilst this is argued by the Defendant, in my judgment an implied term that the Claimant would not postpone the start of the works would be contrary to express terms within the contract.

The Work Order in clauses 8 and 9 (concerning commencement and completion) and 11(concerning variations) provides machinery to allow variations of time. I accept the submission made by the Claimant that the Work Order provides the machinery to permit commencement to be postponed. I further accept the Claimant’s submissions that the Work Order operates without the need to imply the term suggested and that it cannot be said that the suggested term “goes without saying”. Further, I accept the submission that as the contract provides machinery for time variations being made by the Claimant, the proposed implied term would contradict express terms of the contract if permitted.

I do not accept the submission made by the Defendant that implication of the term would be required to give business efficacy to the agreement. The parties could have agreed a specific term that the Claimant would not postpone commencement of work required by any Work Order. They did not do so.

As was set out in the witness statement of Peter Shepherd, the signing of a Work Order did not mean that work could commence by the Defendant immediately. Commencement of the work would depend on the date when the relevant local authority would permit physical work to begin on site. In those circumstances, I accept the submission made by Mr Beaumont for the Claimant that the parties had anticipated that there may be delays and as such agreed the mechanics for varying the period when the works were to be done. I further accept the submission of Mr Beaumont that there was some advantage also to the Defendant in the variation provisions. If no variation of time was permitted the Defendant would remain under an obligation to complete all of the work within 14 weeks. That would be the position regardless of when the relevant local authority in fact permitted physical work to begin on site.