Cases - SWI Ltd v P&I Data Services Ltd

Record details

Name

SWI Ltd v P&I Data Services Ltd

Date

[2007]

Citation

EWCA Civ 663

Keywords

Construction claims

Summary

SWI Ltd entered into a subcontract with P&I Data Services Ltd for building works. SWI’s and P&I’s subcontract specified that a price would be paid for works listed on the tender documents. SWI brought proceedings against P&I for £51,114.66 due pursuant to 6 invoices. P&I’s defence was that SWI had not performed all the work for which they had charged. At first instance, the judge found for SWI for the full amount. The judge also held that the subcontracts were fixed-price contracts and SWI had substantially completed the works. A joint expert had measured and valued the work done and concluded that SWI had underperformed the works to the extent of £40,000. P&I appealed.

On appeal P&I argued that the way in which the subcontracts operated, with interim payments based on measurements and valuations of work done, supported P&I’s argument that the subcontracts were unit-priced contracts, or had become unit-priced contracts. Alternatively, SWI must have been aware that the employer could vary the works in its contract with P&I so that it was necessary to imply a term into the subcontracts between P&I and SWI that P&I would be entitled to vary the works and reduce the price quoted to take account of that variation, or that SWI had performed substantially less than had been tendered for. Although payments were made following monthly measurements, these could not have applied any unit rates as the subcontract did not contain such rates. All that could have been calculated was the amount of work that had been done and what proportion of the price quoted for 100% was by that time due. Some of the invoices rendered supported that this was in fact being done. It was therefore clear that the subcontract(s) were all fixed-price contracts. Even if some term was to be implied to allow P&I to insist on some variation of the works where their employer had so insisted, it does not follow that it was necessary to imply a term under which the fixed price was to be altered with any variation. A term relating to a reduction in price simply cannot be implied.