Wrongful Termination And Failed Wasted Costs Claim

• Published date: 06 May 2021
• Subject Matter: Corporate/Commercial Law, Real Estate and Construction, Corporate and Company Law, Contracts and Commercial Law, Construction & Planning
• Law Firm: K&L Gates
• Author: Ms Nita Mistry

CIS General Insurance Ltd v. IBM United Kingdom Ltd

The Technology and Construction Court has recently handed down authoritative guidance on wasted costs and the characterization of damages arising out of termination of a contract. The court was asked to determine whether the claimant was entitled to recover '128 million in damages for wasted costs arising from the alleged wrongful termination of a contract.

Mrs. Justice O'Farrell ruled that IBM (the defendant in the case) was not entitled to exercise any right of termination because CISGIL (the claimant in the case) disputed a particular invoice within the time prescribed in the contract, and nonpayment of the invoice in those circumstances did not entitle IBM to terminate. Accordingly, IBM's purported termination amounted to a repudiatory breach, which CISGIL was entitled to accept. Nonetheless, the court decided that IBM was ultimately entitled to payment of the invoice, set off against the damages awarded to CISGIL.

This case is another stark reminder of the inherent risks involved with terminating a contract and why termination should always be regarded as a measure of last resort. It is advisable to take legal advice when considering termination.

Background

CISGIL (a wholly-owned subsidiary of the Co-operative Group Limited), a company involved in the underwriting and distribution of general insurance products, engaged IBM to supply a new information technology (IT) system and manage the system for a term of 10 years. The services agreement between the parties provided for payment against certain milestones.

In early 2017, an issue arose as to whether or not the requirements of a particular milestone had been met. IBM submitted an invoice in the sum of c. '2.8 million on the basis that it considered the applicable milestone events and requirements to have been met.

CISGIL's position was that the milestone had not been met (nor payment authorized), and it refused to accept or pay IBM's invoice for the milestone payment. Following setoff notices (by CISGIL) and final payment notices (by IBM), IBM purported to exercise a contractual right of termination based on CISGIL's failure to pay the invoice. CISGIL disputed IBM's right to terminate and treated the purported termination as a repudiatory breach, which it accepted.

CISGIL brought a claim before the High Court seeking damages of '128 million, which it characterized as expenditure incurred in relation to the alleged wrongful termination by IBM, along...