[2025] EWHC 1160 (TCC)

Another regular charge was set out at paragraph 3.3, being “Operational Charges”, as follows:

What both of these provisions show is that the parties had agreed prices in respect of fixed capacity and operational charges for the first 7.5 years of the provision of the services. This period would therefore end in December 2023, assuming that the services were first provided in July 2016.

I deal below with the nature and effect of the SOW. However, in summary, the parties’ positions are these: Avanti says that this is in effect a further framework contract which, for the first 7.5 years of the supply of any services by Avanti, provides the content of any PO made. However the SOW itself does not create any binding obligation to supply such services.

As for EE, it contends that on a true construction of the SOW, and notwithstanding in particular Clause 2.3 of the GSA, it did create an ongoing obligation upon Avanti to supply, and not merely for 7.5 years but on an indefinite basis. Such an obligation did not require the making of any PO. In the alternative, EE contends that if a PO was necessary, it was only the first PO and after that the ongoing obligation to supply was fully operative, as it were.

I will refer to some further terms of the SOW when analysing the parties’ positions below.