Emcor Drake and Scull Ltd. v Sir Robert McaLpine Ltd. [2004] EWHC 1017 (TCC) (07 May 2004)

Emcor Drake and Scull Ltd. v Sir Robert McaLpine Ltd. [2004] EWHC 1017 (TCC) (07 May 2004)

The letter of 20 August 2001 did not constitute a binding contract for the whole of the M & E works, as important matters remained to be negotiated and there was neither actual nor apparent intention to contract immediately. No sub-contract complying with the letter was ever proffered to EDS, and EDS could not be in breach unless such a sub-contract was offered and refused. The contract was limited to the scope and value specified in the short form order.

Citation
[2004] EWHC 1017 (TCC)
Parties
Claimant: Emcor Drake and Scull Limited; Defendant: Sir Robert McAlpine Limited
Jurisdiction
England and Wales
Judgment Date
07 May 2004
Procedural Posture
Commercial Construction Dispute / Judgment on Preliminary Issues
Outcome
No binding contract for the whole of the M & E works was formed by the letter of 20 August 2001. EDS not in repudiatory breach. Preliminary issues decided in favour of EDS.
Legal Topics
Formation of Contract, Repudiatory Breach, Sub Contract Obligations, Liquidated Damages, Private Finance Initiative
Contract Law Construction Law Formation of Contract Repudiatory Breach Sub Contract Obligations Liquidated Damages Private Finance Initiative

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Parties

Emcor Drake and Scull Limited

Claimant

Sir Robert McAlpine Limited

Defendant

Procedural Posture

Commercial Construction Dispute / Judgment on Preliminary Issues

Legal Issues

  1. 1 Whether a binding sub-contract for the whole of the M & E works was formed by the letter of 20 August 2001
  2. 2 Whether EDS was in repudiatory breach of contract
  3. 3 Entitlement to payment for work done

Ratio Decidendi

The letter of 20 August 2001 did not constitute a binding contract for the whole of the M & E works, as important matters remained to be negotiated and there was neither actual nor apparent intention to contract immediately. No sub-contract complying with the letter was ever proffered to EDS, and EDS could not be in breach unless such a sub-contract was offered and refused. The contract was limited to the scope and value specified in the short form order.

Court Disposition

No binding contract for the whole of the M & E works was formed by the letter of 20 August 2001. EDS not in repudiatory breach. Preliminary issues decided in favour of EDS.

Orders

  • SRM not entitled to indemnity for losses alleged to arise from repudiatory breach.
  • EDS entitled to payment for work done within the scope of the short form order.