IES Utilities Group Ltd v British Telecommunications Plc

HIS HONOUR JUDGE STEPHEN DAVIES :

1. This is my judgment on the application by the defendant for strike out or summary judgment made by its written application dated 15 August 2025.

2. The claimant is IES Utilities Group Limited, a utilities contractor based in Manchester but operating across the United Kingdom. It is acting as a litigant in person, although it has the benefit of the services of Mr David Fearon, counsel, who appears instructed direct and has appeared for it today.

3. The defendant is British Telecommunications Plc, the well-known telecommunications operator which operates a telephone and internet network, both of which require a physical infrastructure, including poles and cables, and which is provided and operated by its subsidiary, Openreach. It is represented by DWF Solicitors and by counsel Ms Jenny Wild.

4. I am grateful to everyone who has assisted in the production of the bundles for this hearing and to counsel for their helpful submissions, both written and oral.

5. In short, this case concerns a claim made by the claimant for a sum of just under £3,000,000 for payment for poling gang time on the basis that: (a) the gangs were provided for use as and when required; (b) under the contract made between the parties the claimant was entitled to payment for those gangs, regardless of whether or not they were required to undertake work. The claim is made under the terms of British Telecom's standard form of call-off contract, pursuant to which the defendant instructed the claimant to carry out works to various telecommunications equipment in certain counties of southwest England over the relevant contract period.

6. The history of this case, in short, is as follows. Before the proceedings were commenced, the claimant commenced an adjudication claim against the defendant in July 2024 making a claim for around £10,000,000, including this claim as one of its elements. Those claims were rejected in their entirety by the adjudicator in his decision made on 30 August 2024. The current proceedings were issued on 27 September 2024 by way of a Part 8 claim seeking declaratory relief. Both in the adjudication and in the Part 8 claim the claims were made under the contract terms, although in the evidence adduced in support of both various points were made as to what had happened before, during and after the contract was concluded which were said to be relevant to the basis of the claims.

7. At the directions hearing which took place before me on 5 November 2024, when I was urged by the defendant to direct that the case should proceed as a Part 7 claim on the basis that the claim should be properly particularised by way of a properly particularised particulars of claim rather than to continue as a Part 8 claim, I accepted the defendant’s submissions and made an order in those terms.

8. Paragraph 2 of my order required that the particulars of claim should be full and specific and should comply with CPR Part 16 and also with paragraph C1.3(h) of the Commercial Court Guide [2022 Ed.] The reason for that specific provision was that, as I have already intimated, it was clear that the claimant might well seek to rely upon pre-contract discussions and/or agreements, possibly as part of what was said to be the relevant factual matrix. It was important, as I saw it, that if that was going to be the case, the basis for these arguments should be clearly and properly identified to allow the case to go forward for trial on a fair basis.

9. The claimant duly served its particulars of claim. Whilst I shall deal with this in more detail in due course, in my view it provided no real clarity as to the pleaded case. In particular, there was no satisfactory level of detail provided as to how the claims made sat within the complex framework of the BT standard form contract. It was not clearly explained how the essential case relied upon, which was that there was an entitlement to payment for a poling gang on a daily rate, not just when gangs were actually working on jobs but also when they were said to be available but not required, could sit consistently within the detailed contractual terms, nor how the claim could have been properly invoiced and claimed for under the contract payment regime, and nor how the claim contesting its rejection by British Telecom was properly framed. Was it a claim for monies due under the contract? Was it a claim on the basis that the interim valuations submitted had been wrongly rejected by way of a pay less notice in the sum of zero pounds? Or was it a claim for damages for some other specified breach or breaches of the contract?

10. The other principal problem with the particulars of claim was that there were a number of paragraphs referring to post-contract events, the relevance of which was not clearly explained, but which could at least potentially be intended as an avenue for adducing some evidence of post-contract conduct with a view to buttressing the case advanced in relation to the proper construction of the contract.

11. All of these matters were the subject of a detailed request for further information made by the defendant in January 2025. Those requests were answered in February 2025. A number of requests were answered in a reasonable and helpful way but, in relation to many others, the opportunity was not taken to address the deficiencies in the pleaded case to which I have already referred. Indeed, in some respects it made the position worse because, for example, in relation to the answer to request 4, which asked that the claimant identified with proper particularity on what legal or other basis the background information referred to in the particulars of claim was relied upon by the claimant, that is the post-contract conduct to which I have referred, the reply was that “the claimant avers that what the defendant calls background information is in fact the conduct of the parties and confirms that the parties performed the contract in accordance with the claimant’s analysis of the contract terms”. The relevance of such a pleaded case is or was not explained, but the answer continued: “should the defendant dispute the claimant’s analysis, the claimant will also rely upon the conduct in the alternative as proof of a subsequent variation to the contract by conduct and/or estoppel by convention”.

12. It is in my judgment self-evident that if a claimant is seeking to rely upon post-contract conduct as relevant to the proper terms and effect of the contract, it is necessary to plead it in full and in detail, either in the original particulars of claim or if, as Mr Fearon submitted, it had not been appreciated that it was necessary to do so at that stage, by way of amendment to the particulars of claim. On any view, what is unacceptable is to seek to introduce such an important argument as some form of contingent potential case in an answer to a legitimate request for further information but then to do no more about it.

13. The defendant served a full defence in March 2025, identifying in detail the contractual provisions which it said were inconsistent with the way in which the case had been advanced and raising a number of detailed criticisms of the adequacy of the particulars of claim. A case management conference was listed for June 2025. Before that, there had been some discussion about whether or not the claimant would serve a reply with a view to dealing with the content of the defence. In the end, it did not do so before the case management conference, but it did do so afterwards, well outside the time for doing so and without permission having been sought or obtained.

14. The reply was a lengthy riposte to the defence. It introduced a number of futther allegations, including allegations of what had been said before the contract was made, and alleged conduct after the contract, both of which were clearly intended to allow the claimant to seek to argue, if it wished to do so at trial, arguments based on pre-contract factual matrix or, possibly, on representations or rectification, as well as post-contract conduct which might found arguments based on variation or estoppel. But they were not clearly identified and nor was there, as there ought to have been for reasons I have indicated, an acknowledgment that if that was what the claimant was seeking to argue, it would have to do so by way of the production of an amended particulars of claim which properly pleaded all of these matters in accordance with the requirements of the Civil Procedure Rules and, in relation to factual matrix, the Commercial Court Guide. The Technology and Construction Court Guide also sets out useful guidance as to the content of statements of case in cases of this kind.

15. What then happened was that the claimant indicated in correspondence its position that it was not intending to seek permission to rely upon the reply and nor was it going to amend. In effect, its position was that it was going to continue to trial, seeking to rely upon such matters at trial and to deal with them in witness evidence so far as it thought fit. That was plainly unacceptable and it was in those circumstances that this application was made in August of 2025, supported by a witness statement from Mr Christopher Philip Gee of the defendant’s solicitors, made on the same date, which set out in detail the history and the matters to which I have already referred.

16. It was responded to more recently by a witness statement from the managing director of the claimant company, Mr Ged Shannon, dated 29 September 2025. In many ways that statement followed the same course which had been adopted in the reply to the request for further information and in the draft reply, because it was made absolutely clear in the witness statement that the claimant was indeed relying upon what it said was an agreement reached between the parties as to how works were to be undertaken and payment was to be made before the contract was reduced to writing, clearly with a view to seeking to deal with some of the contractual points made by the defendant. It also made the same arguments in relation to post-contract conduct as already identified, again for the same purpose.

17. In short, it was apparent to me, when I read that witness statement, that whatever the claimant might say in terms of its overt position, the reality was that if and insofar as it found difficulty in dealing with its case purely on the basis of the written contract, it would seek to deal with that at trial by introducing a raft of further arguments which it was not willing to put into a properly pleaded form.

18. The position therefore, as it seems to me, is that the particulars of claim as it stands is simply not an acceptable vehicle for this substantial claim for, broadly, three reasons.

19. Firstly, the claimant has not clearly pleaded its case in any level of acceptable detail as to how its claim fits into and is consistent with the terms of the written contracts actually entered into. In particular, it has not pleaded its case as to where the day rate, which it relies upon, sits within the contract. Is it a charge, and if so, what type of charge? Or is it something entirely outside the definition of a charge? Nor has it pleaded its case as to how its claim fits in with the detailed invoicing and payment provisions to which I have referred. Is it a job of less than 45 days to which no interim instalments apply? Is it indeed a job at all, or is it something else? If it is said, in effect, that it was always understood that it was going to fall outside these provisions because of what was agreed pre-contract and/or because of what happened post contract, then it would need to say so in clear terms. Thirdly, and perhaps most fundamentally, it has not clearly pleaded its case as to how, as a matter of its interpretation of the written contract terms, the claim could be made for these very substantial sums on the basis that it was entitled to keep these poling gangs available on a standing basis and to claim full payment for them even though they were not actually being asked to undertake any works. This is in the context of the written contract terms which contain very clear provisions that payment should only be made in relation to work done on particular jobs.

20. The second problem, as I have already identified, is that even in its existing form, and even if it was read without the further information, the reply and Mr Shannon's witness statement, the existing particulars of claim clearly included pleaded elements which could be sought to be used for wider purposes, but which are not obviously directly relevant to the pleated case, particularly paragraphs 25 to 27 and 33 to 34. That in my view is unacceptable. If they are to remain their relevance would have to be made clear and fully pleaded. If not, they would have to be removed.

21. Thirdly, there is a continued claim for declaratory relief which is inappropriate since the claim is either one for monies due under a contract or for damages for breach of contract.

22. If I could be satisfied that I could safely ignore all of these other points and proceed by confining the claimant to a case based solely on the express terms of the written contracts, ensuring that that case was properly pleaded out and nothing else was included, then I might have some confidence that the claim as pleaded could be left standing with an obligation to provide further particulars by way of a separate document. However, having read everything and having listened to everything that has been said, in the context of the history of this case I simply have no confidence that that is something which can or will be done.

23. In her written submissions for today's hearing, Ms Wild identified in some detail a number of specific criticisms of the existing statement of case. It is not necessary for me to go through them all in detail.

24. Her first point is the constant changing nature of the cause of action advanced by the claimant from the adjudication onwards as showing that it cannot reasonably be assumed by the defendant that this case will continue to be anything other than a moving feast unless radical surgery is performed. By reference to the chronology to which I have referred to and what I have already concluded, I agree with that submission.

25. Her second point is that the current pleaded cause of action is unsustainable insofar as it is a claim for damages based on the zero interim valuation. That is something which is contested by Mr Fearon. It seems to me to be a point of law which may or may not be right, but for me to be satisfied that this was indeed the case I would need to undertake a detailed analysis of the contractual provisions in this case, when read with the earlier well-known authorities referred to by Ms Wild such as Beaufort Developments v Gilbert-Ash [1999] 1 AC 266 and Henry Boot v Alstom [2005] 1 WLR 3580 . I would not have been prepared to strike out the case today on that basis, because I am not satisfied that the claim is not reasonably arguable on any basis or, that if there is simply a problem with how it is pleaded that could not have been cured by appropriate amendment.

26. However, in relation to her third point, which is the claimant’s continuing intention to rely upon matters which are inadmissible and/or irrelevant on the basis of the existing pleaded case, I am satisfied that this complaint is made out for the reasons I have already indicated.

27. Her fourth point is a complaint as to a lack of particulars in relation to any claim based on any alleged variation by conduct and/or estoppel by convention. Again I am satisfied that this complaint is made out on the basis of the existing pleaded case.

28. Her fifth complaint is a failure to provide particulars in accordance with the requests made, relating in particular to the circumstances in which the number of gangs is said to have been increased and to the impact of an amendment agreement which was signed. The claimant has not engaged in its pleaded case as to how its case fits within the agreement and how the amendment agreement is not inconsistent with its case.

29. Her sixth complaint is a failure to provide particulars of loss and damage. I agree with this, although I am satisfied that if this was the only objection it could be cured by an appropriate less draconian order.

30. Her final complaint relates to the continued claim for a declaration, which again is well made but could be cured by simple order for deletion.

31. So far as the consequences of all of this are concerned, in her written submissions Ms Wild took me to the relevant principles so far as the pleading of statements of cases are concerned, referring me to the requirements of the Civil Procedure Rules, the Technology and Construction Court and the Commercial Court Guides as well as a number of authorities in the Court of Appeal and at first instance. In one such case, Halsion Limited v St Thomas Street Development Ltd 211 Con LR 72, decided by HHJ Mark Cawson KC (as he then was) sitting in the Technology and Construction Court, he reached a similar analysis to that reached by me in relation to the inadequacies in the existing pleaded case and concluded that the only fair approach was to strike out the particulars of claim in its entirety and to direct the defendant to provide a full and compliant replacement.

32. On the same basis, it was submitted by Ms Wild that this was the only appropriate order.

33. In fact, Ms Wild went further and submitted that, given the history of this case and given that, she submitted, the court could have no confidence that the claimant could or would make good these significant deficiencies, the most appropriate course was to grasp the nettle and strike out the claim in its entirety. Whilst I understandable why such a submission is made in my judgment it would not be a proportionate response in all of the circumstances given that in my view there is another way in which I can achieve a fair disposal, which permits the claimant a final opportunity to put its case properly it being, on its analysis, a substantial case, but also gives the defendant confidence that if it does not do so, the case will simply not be allowed to proceed further, and that in the meantime appropriate costs orders are made as a suitable response and sanction.

34. What I will do is to make an order under which the existing particulars of claim as supplemented by the reply to the request for further information will be struck out. I will also make an order that unless by a date to be specified the claimant files and serves a draft replacement particulars of claim which properly particularises each and every element of the case which it seeks to advance the the claim shall be struck out.

35. I am also minded to make an adverse costs order in relation to the whole of the defendant’s costs of the claim from the date of the last hearing before me to today's date, with an order for an interim payment on account of those costs and a further order that unless the claimant pays those costs by a specified date then its claim shall be struck out.

36. In my judgment the combination of this carrot and stick approach should lead the claimant either to comply or, if it does not do so, to face the inevitable consequences of not doing so. - - - - - - - - - - - - (This Judgment has been approved by the Judge.) Digital Transcription by Marten Walsh Cherer Ltd 2 nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP Tel No: 020 7067 2900. DX: 410 LDE Email: [email protected] Web: www.martenwalshcherer.com