PCB Media Ltd v Kolocraft Ltd

An oral maintenance agreement may remain enforceable for equipment supplied after a later written agreement where the writing is confined to scheduled equipment and does not cover later additions. A whole-agreement clause and signed-variation requirement operate according to the scope of the written contract. They do not automatically extinguish a separate oral arrangement governing different equipment. A trial judge may assess loss from the available evidence, including a reasonable discount for uncertainty, where the defendant had an opportunity to challenge individual items but did not. An appeal based on accepted factual findings and an adequately supported assessment of loss has no real prospect of success.

PCB Media Ltd claimed payment for information-technology hardware maintenance services supplied to Kolocraft Ltd. The first-instance judge found that the parties had made an oral agreement in 1993 under which maintenance was charged at 10 per cent of the invoiced equipment value. A later written agreement covered only equipment listed in its schedule.

The claim was limited under the Limitation Act 1980, and judgment was entered after a further discount was applied to allow for possible equipment no longer in use. Kolocraft sought permission to appeal, arguing that no contractual entitlement existed and that the loss had not been proved. The central issues were the scope of the written agreement and the adequacy of the assessment of loss.

1. Permission refused. The proposed appeal had no real prospect of success.
2. The first-instance judge was entitled to accept the evidence of PCB Media’s managing director concerning the 1993 oral agreement. That evidence was uncontradicted because the relevant former financial director did not give evidence. The resulting findings concerning the agreed annual charge and payment in advance were findings of fact.
3. The written agreement signed in 1994 was confined to the equipment identified in its schedule. Its exclusion of devices not listed in the contract, its annual renewal provision, and its whole-agreement and signed-variation clauses operated within that contractual scope. They did not provide a contractual basis for charging for equipment installed later.
4. The parties contemplated that additional equipment would be added by amendment or covered by further written maintenance agreements, but neither occurred. Maintenance of that additional equipment therefore remained governed by the original oral agreement, under which the claimant could charge 10 per cent of the value of equipment maintained.
5. The judge was entitled to assess the amount of loss from the schedule and other material available. A 10 per cent deduction reasonably allowed for the possibility that the schedule included equipment no longer in use. The defendant could have challenged individual items but had not done so. A detailed reconstruction was therefore unnecessary.

• Court of Appeal (Civil Division): renewed application for permission to appeal refused; [2002] EWCA Civ 1910.
• Bradford County Court: His Honour Judge Adams entered judgment for PCB Media Ltd after finding an enforceable oral maintenance agreement, applying the limitation period, and discounting the claimed sum.