In 2002, the defendant, Mr Guy Marsh engaged the claimant, Mr Brian Maggs, to carry out refurbishment works on his town house in Bath. The contract between Mr Marsh and Mr Maggs for the works was partly written and partly oral. A budget estimate of £36,510 plus VAT was accepted by Mr Marsh. That estimate only briefly described the works to be covered. It also referred to “omission of certain items as discussed”.

Work began in June 2003. During the course of the work, Mr Marsh gave instructions to Mr Maggs’ workmen that additional items of work were to be undertaken. Mr Maggs was not prepared to do the extra works within the contract price. However no estimates were provided for any of the additional works, nor were any asked for.

The work was finished in early 2004 and Mr Maggs submitted his final bill in the sum of £69,293.71. Interim payments were deducted and Mr Maggs requested payment of the balancing amount of £26,043.71 plus VAT. Mr Marsh disputed that bill and refused to pay the sum claimed. Mr Maggs issued proceedings in the Bristol County Court.

The trial judge was faced with the task of determining the terms of the contract by construing the intention of the parties. He found that subsequent conduct could not be taken into account in this context and preferred Mr Maggs’ recollection of events at the time of entering into the contract. The court ordered that Mr Marsh pay Mr Maggs the sum of £69,692.22 plus VAT plus interest. Mr Marsh appealed.

Whether evidence of conduct subsequent to the formation of a contract can be taken into account where the contract in question is partly oral and partly in writing.