EE Limited v Avanti Broadband Limited

Where a framework GSA makes formation of any binding supply contract conditional on the supplier's acceptance of an EE Order, an engagement form or statement of work that sets prices for a limited period does not, by itself, create an indefinite obligation to continue supplying thereafter; the correct construction gives primacy to the explicit Order/acceptance mechanism in the GSA and the usual American Cyanamid interlocutory threshold of a "serious issue to be tried" is appropriate unless particular facts require a higher standard. (See [2025] EWHC 1160 (TCC).)

This is an interlocutory application by the network operator for an interim injunction preventing its satellite supplier from suspending satellite backhaul services pending trial. The dispute turned on contract construction: whether the parties' GSA and the accompanying Statement of Work (SOW) created a continuing, indefinite obligation on the supplier, or whether binding supply obligations arose only where EE issued a Purchase Order (Order) and the supplier accepted it. The court was asked also to determine the appropriate interlocutory merits threshold (ordinary "serious issue to be tried" versus a higher standard for mandatory relief). The judge invited the parties to an expedited trial but, having found no serious issue to be tried, dismissed the injunction application.

1. Overall disposition: The claimant's application for interim injunctive relief is dismissed because it fails the threshold of a serious issue to be tried. The court refused to adopt a heightened merits threshold and applied the ordinary American Cyanamid test.
2. Merits threshold: Although the defendant characterised the relief as mandatory and relied on authorities suggesting a higher standard, the court concluded it was undesirable to adopt a different formal test in the present case and applied the usual "serious issue to be tried" standard, whilst recognising the need to examine consequences of granting or withholding the injunction in the particular circumstances. The court relied on the approach in [2009] UKPC 16 (National Commercial Bank Jamaica v Olint) as explaining the proper nuanced approach to mandatory-like injunctions.
3. Construction of the contractual scheme:
   1. The GSA is a framework agreement that expressly provides (Clause 2.3) that a binding contract for sale and purchase of goods or services arises only when EE issues an Order and Avanti accepts that Order (by written confirmation or by delivery of the services).
   2. The SOW is an Engagement Form incorporated within that contractual architecture and predominantly specifies the content, service specification and pricing for an identifiable priced period (the initial 7.5 years). It does not, on its proper construction, displace the Order/acceptance mechanism in Clause 2.3 so as to impose an open-ended continuing obligation on Avanti to supply indefinitely without further Orders or agreement on commercial terms.
   3. Where a conflict between the GSA and the Engagement Form arises, the GSA takes precedence (Clause 1.3), which reinforces that the SOW cannot be read to nullify the acceptance requirement in Clause 2.3.
4. Reasoning on the SOW's duration and commercial logic: The court concluded that references to a capitalised "Term" in the SOW are to be read in the commercial context of the SOW's pricing structure and, for present purposes, align with the period for which prices are expressly provided (7.5 years). Reading the SOW as creating an indefinite obligation payable by a court-determined "reasonable charge" was commercially unrealistic and inconsistent with the invoicing and charging regime in the GSA and SOW.
5. Factual matrix and commercial context: Background matters including the parties' dealings, change control notes, negotiations for renewed pricing, and the Home Office contracts did not displace the clear contractual architecture requiring Orders and acceptance. The court also rejected late-invoked arguments under Clause 1.4 that the supplier had an unconditional obligation to accept Engagement Forms and Orders in all circumstances.
6. Outcome and orders: Because the claimant cannot show a serious issue to be tried on the construction point, the injunction application is dismissed. Questions as to adequacy of damages and balance of convenience therefore do not fall to be determined on this application. The judge recorded an offer of an expedited trial window should parties agree but the claimant declined; the court made no further interim orders.

not stated in the judgment.