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ARTICLE · 23 MAY 2018

The End Of Variation By Conduct In PFI Contracts – Changes In Making Changes

Clyde & Co
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The May 2018 Supreme Court case of Rock Advertising Limited (Respondent) v MWB Business Exchange Centres Limited (Appellant) [2018] UKSC 24 has amended how 'no oral variations' ...

United KingdomGovernment, Public Sector
David Owens
David Owens
Olivia Blessington
Olivia Blessington
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The May 2018 Supreme Court case of Rock Advertising Limited (Respondent) v MWB Business Exchange Centres Limited (Appellant) [2018] UKSC 24 has amended how 'no oral variations' clauses are interpreted and is likely to stop any 'variation by conduct' arguments in respect of PFI contracts where the contract contains a clause requiring any amendments to be made in writing (a 'no oral variations' clause).

The background to this was that three cases in 2016 had encouraged us all to believe that the courts would be prepared to permit variation by conduct arguments, even where the Contract contained a 'no oral variations' clause. This was particularly relevant to PFI contracts, where parties had been able to argue that their contract had been varied by conduct, despite the presence of a 'no oral variations' clause, if:

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