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

This case concerns a contract for the performance of works by the Defendant for the

This judgment follows the hearing of a Part 8 claim arising out of an adjudication. The Adjudicator decided that the Defendant had a common law right to recover damages for loss of profit and/or mobilisation and demobilisation as a result of the Claimant’s e-mail to the Defendant dated 24 October 2023 stating that works under the Work Order would not commence imminently but would most likely take place the following year in 2024.

The Claimant asserts that on a proper review of the facts and contractual provisions, the e-mail amounted to a variation of the contract and not a breach of contract. Further, if the e-mail did constitute a variation, that variation would not entitle the Defendant to the losses claimed, but only an entitlement to have its claim valued by the Claimant in accordance with the contract.

The Claimant seeks a declaration that it is not and was not in breach of the terms of the Blyth Work Order, or the framework agreement, when it informed the Defendant of the postponement of the Blyth Phase 3 Work Order. In addition, the Claimant seeks a declaration that to the extent it is in breach of either the Blyth Work Order or the framework agreement, it is not liable to the Defendant for the mobilisation and/or demobilisation costs or loss of profit allegedly suffered by the Defendant.

The Defendant asserts that the application made by the Claimant is not appropriate for Part 8 proceedings because there is conflicting evidence of fact. Further, it asserts that the Court should not make the declarations sought because there is no merit to them.

The Claimant was represented by Mr Adam Beaumont of counsel. Whilst the Defendant was previously represented by Mr. David Fearon of counsel, who made written submissions on behalf of the Defendant earlier in the proceedings, there was no attendance nor any representation for the Defendant at the hearing. I have, of course, considered the written submissions made by the Defendant.