[2025] EWHC 1160 (TCC)

In around June 2016 EE and Avanti signed or entered into 3 separate contractual documents.

The first is described as a Supply of Goods and/or Services Agreement with a printed date on it of May 2016 (“the GSA”). The signatures are undated but for reasons which I shall explain, it is likely that they were made in around June 2016. There is no dispute between the parties that the GSA is a “framework agreement” in the sense that it contains a set of standard terms and conditions which the parties agree will form part of any particular contract for the supply of goods or services going forwards. However, it does not itself contain any obligations on the part of the supplier to provide particular goods or services for a particular price at a particular time. It is also an entirely generic document which purports to govern the provision of any kind of goods or services. It may not have been the most apposite contractual vehicle for the provision of the services at issue here, but this is what the parties signed.

The GSA contains a number of material terms, as set out below:

“1.

Interpretation and Precedence…

1.3

In the event of any conflict between the GSA, the Engagement Form (if any) and any Order, the following decreasing order of precedence shall apply: a) the GSA; b) the relevant Order; and c) the Engagement Form (if any).

1.4

Where so advised by EE, the GSA shall incorporate and give precedence to (clause 1.2) the terms of Schedule B (Flow Down Terms). The terms of Error! Reference source not found. B shall only apply to the provision of Goods and Services by you to EE where you are so advised by EE, and in no other circumstances. The Supplier undertakes to accept all Engagement Forms and/or Orders where this clause 1.4 applies.

2.

GSA and Ordering

2.1.

If EE wishes to acquire any Goods and/or Services from you, it may enter into an Agreement by submitting Order(s). This GSA shall be incorporated into and shall apply to all Agreements unless expressly stated otherwise, or to the extent expressly stated otherwise, in an Agreement.

2.2.

At EE's request, you shall cooperate in the preparation of an Engagement Form which shall contain as a minimum:

(a)

the types and quantities of Goods and/or Services to be provided by you under the Engagement Form;

(b)

the applicable Charges;

(c)

the required address for delivery/implementation of such Goods and/or Services; and

(d)

the required date of delivery of such Goods and/or Services.

2.3.

Notwithstanding signature of this GSA or the execution of an Engagement Form between us, a binding contract for the sale and purchase of any Goods and/or Services shall only be formed once you accept the Order. EE shall have no liability to you (including, without limitation, any liability to make payment for Goods and/or Services already provided) for such Goods and/or Services until you have received a valid Order in respect of such Goods and/or Services from EE. Acceptance of an Order shall be upon your written confirmation of the Order, or the delivery of the Goods and/or Services to which the Order relates (whichever occurs first). For the avoidance of doubt, EE has no obligation to issue Orders hereunder.

2.4.

This GSA shall operate to the exclusion of all previous versions of EE's standard terms and conditions (including any amendments to such terms and conditions) or any and all terms appearing on any quotation, acceptance form, delivery form, invoice or other document or letter issued by you…

3.

Term and Exclusivity

3.1.

Conditional upon you delivering a duly executed parent company deed of guarantee (in such form to be agreed between us) to EE, this GSA shall commence on the date set out above and shall remain in force unless terminated in accordance with its terms.

3.2.

The Goods and/or Services shall be provided on a non-exclusive basis and EE shall be free to procure any services and/or goods identical or similar to the Goods and/or Services in-house or from any other supplier at any time during the Term…

14.

Termination and Consequences

14.1.

Either Party may terminate this GSA or any Agreement immediately on written notice without prejudice to that Party's other rights and remedies under the GSA or such

Agreement if the other Party:

(a)

is in material or persistent breach of the GSA or the relevant Agreement and either such breach is not capable of remedy or such breach remains unremedied for thirty (30) days from the date the defaulting Party is notified of such breach by the non-defaulting Party; or

(b)

suffers an Insolvency Event or any similar event in any jurisdiction.

14.2.

EE may terminate this GSA or any Agreement immediately at any time by giving you notice in writing. In the event of termination in accordance with this Clause, EE shall be liable to pay you the Charges on a pro-rata basis so that EE is only obliged to pay you: (1) for the Goods and/or Services actually delivered or provided to EE in accordance with the Agreement at the date of termination and (2) for any committed irrecoverable costs which are not included in the pro-rata Charges calculated in accordance with part (1) of this clause 14.2 and which the Supplier can provide evidence to EE that it is obliged to pay as a direct result of complying with EE's instructions under this GSA or any Agreement.

14.3.

EE may terminate this GSA or any Agreement immediately if you are subject to a change of control (as defined by sections 450 and 451 of the Corporation Tax Act 2010). You shall notify EE as soon as practicable after any change of control takes place.

14.4.

Termination of the GSA alone shall not of itself terminate or otherwise affect any Agreement. Termination of any Agreement shall not of itself terminate or otherwise affect the GSA or any other Agreement. Termination or expiry of an Agreement shall not affect any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination or expiry…”

Schedule A to the GSA contains the following definitions among others:

The proforma set out in Schedule D to the GSA reads thus:

Pausing there, the contractual structure contemplated by the GSA, pursuant to which the goods or services were to be supplied by Avanti to EE, appears to be as follows:

Taken at face value, the first sentence of Clause 2.3 is extremely clear: there is no binding contract (and therefore contractual obligation) to supply goods or services until and unless there is an Order which has been accepted by Avanti in the modes later described. Moreover, it is expressly stated that this is the position regardless of the signature of the GSA or the execution of an Engagement Form. As I shall explain below, EE’s primary position is that it is not in fact the case that accepted Orders are a pre-requisite to contractual obligations upon Avanti to supply. Avanti’s position is to the contrary.

In this case, the parties did indeed agree an Engagement Form. Further, at all times Orders were issued by EE and accepted by Avanti in respect of the services they provided. This is set out in detail below.

EE at the hearing took a further point which it said supported its case, arising from Clause 1.4 cited above. I shall deal in context with that below.

As for the termination provisions set out in Clause 14, which deal simply with the GSA, it can be seen that while EE has the right to terminate the GSA “without cause” as it were, Avanti can only terminate it “for cause”. It is common ground that the GSA has not been terminated and, to the extent relevant, continues in existence.