Cleveland Bridge has an uphill battle. It has to prove the value of its work and Multiplex can still abate the value for the cost of remedials and claim damages for the repudiatory breach of contract.
An appeal will be difficult. The main difficulties for CBUK are, firstly, that the detailed wording of the supplemental agreement does not favour it and, secondly, that it failed to prove that an oral agreement had been reached. Even then it did not incorporate it into the supplemental agreement.
If Cleveland Bridge wants to carry on its best option is to value its claim and mediate on quantum issues: in other words, the amounts due to Cleveland Bridge and the amounts to be deducted from those sums by Multiplex.
This case has turned on the facts. The negotiations broke down before they were concluded, and the supplemental agreement was worded so as to favour Multiplex. Other subcontractors need to check their contracts carefully.
Jane Ryland is head of construction at legal firm Cripps Harries Hall