Dipcon Engineering Services Limited v Urban Development Corporation of Trinidad and Tobago Limited (Trinidad and Tobago)

Under a price-fluctuation clause incorporating FIDIC Conditions, a contractor that has not complied with the contractual notice and record-keeping process may rely only on the default mechanism in clause 53.4. That mechanism requires the employer itself to assess and verify the claim. Where the employer is a company and its powers have not been delegated, the relevant act is that of its board. An assessment by employees does not create contractual entitlement without board authority. A course of dealing may establish the parties’ interpretation of a contract, but it may also establish board approval as a condition of payment. Until that approval is obtained, the entitlement does not crystallise. Concurrent factual findings will ordinarily not be disturbed on appeal absent a rare exception.

Dipcon completed infrastructural works under a contract incorporating the 1987 FIDIC Conditions. After negotiations concerning the final account, UDeCOTT paid an agreed sum while Dipcon pursued an additional equipment-cost claim. UDeCOTT officers reassessed that claim, but it was not approved by UDeCOTT’s board. The High Court dismissed the claim, finding that board approval was necessary. The Court of Appeal dismissed Dipcon’s appeal and treated the reassessment as outside the prescribed FIDIC process. On further appeal, the Board considered whether clause 53.4 or the parties’ course of dealing made the additional sum payable without board approval.

The Board dismissed the appeal. Dipcon had not established an entitlement to the Additional Claim under either of the bases advanced.

1. Clause 53.4 of FIDIC. Clause 70.1 required any price-fluctuation adjustment to be determined in accordance with Part II of the Conditions. Dipcon had not complied with clauses 53.1 to 53.3, because it had not given timely notice of the claim to the Engineer or followed the associated record and account procedures. Clause 53.4 therefore operated as a backstop or default provision. It permitted the employer to assess and verify the claim by reference to contemporary records.
2. Under clause 53.4, the relevant act was an act of UDeCOTT itself. As a company, UDeCOTT could act through its board unless the relevant power had been delegated. The reassessment by UDeCOTT’s employees did not establish that UDeCOTT had assessed and verified the claim. The concurrent findings that the employees lacked authority, that Dipcon knew board approval was required, and that approval had not been obtained disclosed no basis for appellate intervention. The Board applied its established approach, illustrated by Low v Lezama [2022] UKPC 15 and Dass v Marchand (Practice Note) [2021] UKPC 2; [2021] 1 WLR 1788.
3. Course of dealing. The principle stated in Amalgamated Investment & Property Co Ltd v Texas Commerce International Bank Ltd [1982] QB 84 was applicable: where the parties’ course of dealing establishes a contractual interpretation on which each acts with the other’s knowledge, that interpretation may bind them as a variation of the contract. The parties’ dealings showed that they negotiated directly about the final sum, but also established that payment required UDeCOTT board approval. The same requirement applied to the reassessed Additional Claim and was known to Dipcon.
4. Because the reassessment never received board approval, Dipcon’s entitlement to payment never crystallised. The appeal was accordingly dismissed.

• Privy Council: dismissed Dipcon’s appeal on 25 June 2025.
• Court of Appeal of the Republic of Trinidad and Tobago: dismissed Dipcon’s appeal from the High Court, holding that the reassessment was outside the FIDIC process and required board approval.
• High Court: Rahim J dismissed Dipcon’s claim in a judgment dated 2 November 2017.