Clark Smith Partnership Ltd v Leyton Football Club

Where a professional services contract contains no agreed fee or time rates for additional work, the consultant may recover a reasonable remuneration for additional services requested and performed. A contractual notice requirement is not necessarily a condition precedent to recovery. A change in procurement method does not itself terminate or frustrate the contract where the parties can accommodate the changed circumstances by variation. The court may assess reasonable remuneration from the available evidence, while allowing the client to challenge the amount or basis of the claim.

The claimant, a consulting engineering practice, was engaged by the defendant football club in connection with a redevelopment project. The parties agreed fees for specified engineering and tender services under the ACE Conditions. The project was subsequently procured through separate trade packages rather than a traditional main contract, and the claimant performed further services.

The claimant sought payment for additional work. The club contended that the agreement was for a fixed fee of £32,000 plus VAT and that the claimant’s failure to notify it of additional fees defeated the claim. County Court proceedings were transferred to the Technology and Construction Court. The counterclaim was stayed and the issues available to the club in its defence were limited by an earlier order.

1. Contract and additional services. The reference to the ACE Conditions in the claimant’s letter incorporated the then-current 1998 Second Edition. Clause 6.7, providing for additional payment for variations or disruption, was not inconsistent with the letter of engagement. However, the parties had agreed no time rates and no initial estimates for additional payments.
2. The claimant’s obligation to advise the club when additional work was required was not a condition precedent to recovery. In the circumstances, the parties had otherwise agreed that the claimant would receive reasonable remuneration for additional services requested and performed. The club remained entitled to challenge the reasonableness of the amount or charging basis.
3. The change from traditional procurement to separate trade packages did not determine or terminate the contract and did not frustrate it. The parties could agree a consensual variation to accommodate changed circumstances, and the work required remained capable of being performed under the agreement.
4. The claimant established that substantial services were additional to the original scope. The court adopted a cautious expert assessment of £52,000 for additional work, adjusted the allowance for non-productive handover costs, and awarded £24,231.79 plus VAT.
5. The claimant was not required to identify with precision one particular legal characterisation of its entitlement where the material facts were adequately pleaded, the defendant could answer them, and the evidence established an entitlement to payment for work performed at the defendant’s request.
6. Interest was awarded under section 35A of the Supreme Court Act 1981, rather than the Late Payment of Commercial Debts (Interest) Act 1998. The claimant’s Part 36 offer justified enhanced interest and indemnity costs under CPR rule 36.21.

Judgment was entered for the claimant for £24,231.79, VAT of £4,240.56, and agreed interest. The club was ordered to pay the claimant’s standard-basis costs, with indemnity costs from the relevant Part 36 date. Permission to appeal was refused, subject to an application to the Court of Appeal.

The proceedings began in the County Court and were transferred to the Technology and Construction Court. The judgment itself records no appeal from the final decision. Permission to appeal was refused, with the club permitted to apply to the Court of Appeal.