77M Ltd v Ordnance Survey Ltd

Summary judgment is unsuitable where contractual documents contain materially inconsistent provisions, the drafting is poor, and the proper construction may be assisted by the established factual matrix. A claimant has a real prospect of succeeding where the contract, read as a whole, supports competing interpretations of whether an obligation is continuing or limited to a single transaction.

A factual matrix cannot rewrite the written contract, and inadmissible evidence concerning negotiations must be excluded. Nevertheless, admissible background evidence may assist construction where the contractual language is uncertain. Summary judgment may also be refused where there is a compelling reason for the issue to proceed to trial, including where related contractual issues will be tried in any event.

77M Ltd brought a claim alleging that Ordnance Survey Ltd induced HM Land Registry to breach the A1 Match Licence, a contract dated 13 February 2014 between 77M and HM Land Registry. The alleged breach concerned HM Land Registry’s refusal to continue providing services.

Ordnance Survey applied for partial summary judgment. It argued that the licence provided for a single service involving one Customer File and one Response File for a volume-based price. 77M contended that the contractual documents required continuing provision of services.

The application required the court to determine whether 77M had no real prospect of succeeding on its construction of the licence and whether there was any compelling reason for the issue to proceed to trial.

1. Application dismissed. Ordnance Survey’s application for partial summary judgment was refused.
2. The contractual documents supported both interpretations. The Terms and Conditions defined the term of a service as ongoing unless otherwise specified. They also contained provisions concerning regular price reviews, termination, suspension and continuing service. The Contract Schedule expressly required services to be provided on a continuous basis unless terminated.
3. Other provisions pointed towards a one-off service, including the references to a single Customer File, a Response File, volume-based pricing, a single payment and destruction of the data after completion of the cleansing process. The documents were badly drafted and not wholly consistent. The Contract Schedule prevailed over the Terms and Conditions in the event of conflict.
4. The factual matrix could assist construction once established at trial, although it could not rewrite the contract. Some evidence relied on by 77M concerning negotiations was inadmissible. These matters meant that it could not be said that 77M had no real prospect of succeeding.
5. There was also a compelling reason for trial. The A1 Match Licence and its surrounding factual matrix would be considered at trial in relation to other issues. Determining the present issue separately risked an appeal and additional expense.
6. Ordnance Survey’s summary judgment application was unreasonably made. 77M was awarded £15,000 on account of its costs. Ordnance Survey succeeded on one disclosure application, for which no immediate payment order was sought. Costs of the remaining disclosure applications were costs in the case.