HT-2023-000321 - [2025] EWHC 2496 (TCC)

Mr Macey-Dare KC for KML submits that, at [198] of the Judgment the Court accepted Pharos’ claim for £33,650.76 plus VAT in respect of the cost of “Additional Equipment”, with reference to Invoice No. 02185. That figure included the following costs:

It is said that Pharos did not in fact claim for those costs in these proceedings, as it had issued a credit for them (as shown on the final two entries in invoice No. 2189). It is therefore said that those costs should be deducted from the principal amount of Pharos’ claim.

Mr Macey-Dare KC argues that the Court has power to correct this error on one or both of the following bases:

It is accepted by KML in its submissions that it is for it to persuade the Court, if the second of these bases is relied upon, that the factors favouring re-opening the judgment are, in combination, sufficient to overcome the deadweight of the finality principle. In the present case, it points to the following factors:

This is not a case in which either there has been a slip, or it would be appropriate to revisit the judgment under the inherent discretion. KML’s submissions ignore the basis upon which the Court approached the quantification of Pharos’ claim in circumstances where, as the judgment makes clear at paragraphs 184-190, there was a mismatch between both (a) the manner in which Pharos invoiced and its entitlement to payment under the Revised Purchase Order; and (b) the pleaded approach of KML in respect of amounts due.

In relation to additional equipment, KML admitted, in its Amended Defence, an entitlement on the part of Pharos to the sum of £81,000 which was the ‘not to exceed’ value within the Revised Purchase Order. This is because, as described at paragraph [189], KML’s pleaded position on the entitlement of Pharos started with the amount of the Revised Purchase Order. KML did so without identifying or claiming the credit it now suggests that the Court was wrong in overlooking. In allowing the claimed £33,650.76 at [198], the Court noted, correctly, that this sum was less than the sum admitted in the Amended Defence. In its Master Spreadsheet, KML (contrary to its pleaded case), identified the bases upon which it disputed certain parts of certain invoices. In relation to invoice 02185, it disputed the sum of £4,582.82 in respect of clamps, but made no reference within its Defence to the sums or arguments now advanced, whether in the alternative or otherwise. The Court was not bound (and it was not submitted that the Court was bound) to determine the sum owed to KML precisely by reference to specific sums either claimed or credited, and KML’s own primary case was advanced on a different basis. In the context of the judgment as a whole, which included a determination in KML’s favour of such consequential costs as it could establish caused by any delay to the project caused by the defective equipment of which complaint was made, and in light of KML’s pleaded position as to the amount owed for additional equipment by reference to the Revised Purchase Order which substantially exceeded the sum awarded, the determination of £33,650.76 was not in error. Even if, contrary to the foregoing, this determination was objectively erroneous, that error arose from the failure on the part of KML to articulate its case in the manner it now seeks to, and this is a case in which the importance of the principle of finality should be respected.

It is not therefore appropriate to amend the principal sum awarded.