HT-2023-000321 - [2025] EWHC 1764 (TCC)

KML contends that the Contract provides for payment of 10 days of daily personnel charges at a unit cost of £4,550 per day (plus VAT). It is said that this represents £650 per person for 7 persons. Mr Macey-Dare KC argued in Closing Submissions that the commitment was limited to 7 persons per date at £650 per person per day, with a total daily personnel charge of £4,550 (plus VAT).

Mr Woolgar states that this is not pleaded. Mr Macey-Dare KC accepted that Mr Woolgar was correct that this point was not a point raised before by KML. It is, indeed, right that the Amended Defence does not explicitly refer in narrative to any apparent issue relating to the number of personnel permitted to be charged for each day. However, Mr Macey-Dare KC contends that this is a point of construction and raising it causes no prejudice.

The difficulty with taking the point is that KML’s case, at a detailed level, on the quantification of Pharos’ claim both as opened and, indeed, closed is not predicated on Pharos being limited to 7 personnel.

At commencement of trial, I was provided with a spreadsheet said to be the fruits of the joint labour of both sets of solicitors, although principally produced, I was informed by Mr Woolgar, by KML’s instructing solicitors. I shall refer to this as ‘the Master Spreadsheet’.

The Master Spreadsheet included two sheets containing, ‘D’s position on C’s Inv (Daily)’ (Tab 5)and ‘C’s Position C’s Inv (Daily) (Tab 7). Within Tab 5, KML’s position on the appropriate daily personnel charge recoverable by Pharos reflects the actual number of personnel deployed, rather than a number capped at 7. In a document produced for Closing, referred to in more detail below as KML’s Counterfactual, KML again quantifies its case on charges owing to Pharos on various assumed counterfactuals, on the basis of the actual number of personnel deployed, taken from Tab 5 of the Master Schedule.

Given the clarity of KML’s acceptance of Pharos’s claim for the actual number of personnel in its own quantum calculations, presented both in opening and closing, it is not necessary to consider the contractual point raised for the first time by Mr Macey-Dare KC in his written closing submissions. Even if I were wrong about this, I would not consider it appropriate to allow an amendment to the pleadings to permit KML to argue that, on a proper construction of the Contract, Pharos’ entitlement was to deploy and be paid for no more than 7 personnel. It was a point on which Pharos would have been entitled to call evidence in respect of, how and why ‘additional’ personnel were deployed, and whether that was a position acceded to by KML at the time. It is prejudicial for the point to be taken explicitly only at the end of the trial.