[2025] EWHC 1160 (TCC)

First, Mr Lavy KC argued there were mandatory terms employed. For example, paragraph 1 of Schedule 1 refers to the services “to be provided” while Section 5 thereof refers to the Goods “shall be delivered”. Also in Schedule 1 Service Description, paragraph 2 says that “The Supplier shall have full responsibility for the 'end to end' deployment and delivery of the Solution for the list of Sites provided by EE.”

Then as part of the Operational Services section, paragraph 2.14.4 states that “The Supplier is responsible for all Goods or hardware upgrades required at the Sites”. Yet further, paragraph 1.1.1 under Annex 8 Capacity Management Process says that “Fixed Capacity of 350Mbps will be provided across the 3 Beams in Figure 2 (above) and charged as per Schedule 3 (Charges).”

I see all of that that, but I do not accept that use of such mandatory language indicates the creation of an indefinite obligation to supply. Rather these passages indicate what type or level of service is to be provided when Avanti does supply its services and in this case, very considerable detail, much in the way of a specification, is needed. But none of that negates the need for a PO.