EE Limited v Avanti Broadband Limited

The claimant sought an interim injunction to restrain the defendant from suspending or materially changing satellite mobile backhaul services pending trial, and sought an interim order for payment on a pro tem basis. The dispute turned on contractual construction of a General Supply Agreement (GSA), an accompanying Statement of Work (SOW) and a series of Purchase Orders (POs), in particular whether there remained an indefinite contractual obligation on Avanti to supply services without further accepted POs.

The court applied the American Cyanamid principles but proceeded on the usual "serious issue to be tried" threshold. It held that Clause 2.3 of the GSA required a valid Order accepted by Avanti before a binding contract for specific services arose, and that the SOW was an Engagement Form incorporated into Orders rather than a free-standing, indefinite supply contract. The SOW fixed prices for an initial period (7.5 years) and did not create an ongoing obligation to supply thereafter; any post-2023 supply would require an accepted PO or agreed change control. The claimant therefore could not show a serious issue to be tried on its primary construction arguments, and the application for interlocutory injunctive relief was dismissed.

The claimant (EE) applied for an interim injunction preventing the defendant (Avanti) from suspending or withdrawing satellite backhaul services pending trial, and sought an order for a provisional payment to Avanti for continued provision. The factual background was that Avanti had supplied primary and backup satellite links for a number of EE cell sites pursuant to a contractual framework entered in 2016 comprising a GSA, a Statement of Work and multiple Purchase Orders. Pricing in the SOW explicitly covered an initial period (c.7.5 years) and parties had negotiated renewal terms during 2023–2024 without agreement. Avanti sought to increase its price from the historic monthly level and threatened phased withdrawal when EE refused to accept the increase; Avanti had also entered a letter of intent with a third party.

Nature of the application: interim injunctive relief to preserve services until migration or trial; included provision for a court-determined pro tem price.

Issues before the court:

• Whether EE raised a serious issue to be tried on its primary case that the SOW (or GSA via Clause 1.4) imposed an indefinite obligation on Avanti to supply services without further accepted POs;
• Which merits threshold applied to the mandatory/prohibitory nature of the injunction;
• If a serious issue were made out, whether the balance of convenience (least irremediable injustice) favoured injunctive relief.

Court's reasoning: The court acknowledged authorities on mandatory injunctions and the need to examine consequences of granting or withholding relief, but for clarity applied the conventional "serious issue to be tried" test because the central dispute was a point of contractual construction. Clause 2.3 of the GSA expressly provided that a binding contract arises only when an Order is accepted by the supplier (by written confirmation or by delivery). The SOW was properly characterised as an Engagement Form incorporated into Orders and set out service specification and prices for an initial period; it did not itself create a perpetual obligation to supply. The use of mandatory wording within the SOW described performance obligations when services were supplied but did not negate Clause 2.3. The claimant's alternate arguments (that PO1 alone triggered an ongoing obligation, or that Clause 1.4 rendered acceptance meaningless) were rejected as commercially unrealistic or inconsistent with the GSA's precedence provisions. Factual matrix considerations (including the Home Office contracts and migration practicalities) did not displace the primary construction. Because EE could not establish a serious issue to be tried on its construction, the injunction application failed and there was no need to consider damages adequacy or balance of convenience.

Outcome: the application for injunctive relief was dismissed for failing the merits threshold.

The application for an interim injunction is dismissed. The court found that EE could not show a serious issue to be tried because Clause 2.3 of the GSA required an Order accepted by Avanti to create binding supply obligations, the SOW operated as an Engagement Form incorporated into Orders and fixed prices for a defined initial period (approximately 7.5 years) rather than creating an indefinite obligation to supply; alternative arguments advanced by EE were commercially unrealistic or inconsistent with the contract. Consequently injunctive relief was refused.