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

I have found above that there was a variation, no term is to be implied and as such there is no breach of any implied term. If I am wrong about that, I also reject the

Prices had been agreed between the parties in respect of individual units and on a price per plot basis. The maximum amounts payable if one contractor undertook and completed all of the work in all of the plots would be £209,956.46. That unit pricing would include profit and all mobilisation and demobilisation costs.

Whilst I accept that there is nothing in the contract which precludes the Defendant’s right to recover damages at common law, I accept the submission of the Claimant that a party cannot do better than if the contract had been performed if damages are awarded at common law. What is payable to the Defendant in the event that a Work Order is terminated is set out in clause 18. That clause provides that the employer shall not be liable for costs, loss of profits or any indirect or consequential losses. What the Defendant could have done if its employment was terminated in respect of any individual Work Order was to claim any sums “properly due… in connection with the carrying out of the works in connection with the termination of this Work Order”.

The Defendant asserts that clause 3.3 does not exclude recovery at common law of loss and expenses actually incurred and if it did exclude those losses, the term would fall foul of the Unfair Contract Terms Act 1977. On this point, I accept the submissions made by Mr Beaumont for the Claimant. In my judgment, the clause is reasonable having regard to the bargaining position of the parties, the opportunity to enter into an alternative agreement, whether the Defendant knew or ought to have known of the existence of the term, the clause as a whole, consent to the clause and the limit of liability.

Mr Shepherd had been the managing director of the Defendant since February 2015. He had entered into 68 similar Work Orders with the Claimant under the same framework agreement. The Defendant did not have to contract with the Claimant. It could have declined a specific Work Order. However, the Defendant had the benefit of being potentially provided with work pursuant to the framework agreement. The Work Order provided mechanisms to extend time and, if a contract was terminated, for there to be payment for the works done before termination.