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. It was common ground that if P&I required works to be performed that were not the subject of the tenders or purchase orders: SWI was asked to tender for these works and P&I then accepted these tenders.

SWI brought proceedings against P&I for £51,114.66 due pursuant to six invoices. P&I’s defence was that SWI had not performed all the work for which they had charged and, in fact, SWI owed monies to P&I. 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.

1. Was the subcontract(s) fixed price contracts?

2. Was the judge right to reject the join expert’s view?

3. Was there a term, either express or implied, dealing with variations and the consequences thereof?