“WHEREAS: 1) the COMPANY wishes that certain WORK shall be carried out, all as described in the CONTRACT; and 2) the CONTRACTOR wishes to carry out the WORK in accordance with the terms of this CONTRACT; and 3) the GUARANTOR wishes to guarantee the obligations of the COMPANY under the CONTRACT NOW: The parties hereby agree as follows: 1) In this CONTRACT all capitalised words and expressions shall have the meanings assigned to them in this FORM OF AGREEMENT or elsewhere in the CONTRACT. 2) The following Sections shall be deemed to form and be read and construed as part of the CONTRACT: [there followed a description of the four sections of the Contract] … The Sections shall be read as one document, the contents of which, in the event of ambiguity or contradiction between Sections, shall be given precedence in the order listed, with the exception that the Special Conditions of Contract shall take precedence over the General Conditions of Contract. 3) In accordance with the terms and conditions of the CONTRACT, the CONTRACTOR shall perform and complete the WORK and the COMPANY shall pay the CONTRACT PRICE. 4) The terms and conditions of the CONTRACT shall apply from the date specified in Appendix 1 to this Section I - Form of Agreement which date shall be the EFFECTIVE DATE OF COMMENCEMENT OF THE CONTRACT [30th October 2019 ]. 5) The duration of the CONTRACT shall be as set out in Appendix 1 to this Section I - Form of Agreement [two months] 6) The GUARANTOR hereby guarantees the payment obligations of the COMPANY in respect of this CONTRACT …”
“1. DEFINITIONS … 1.4 “CONTRACT” shall have the meaning described in Section I - Form of Agreement. 1.5 “CONTRACT PRICE” shall mean the price for the WORK calculated in accordance with Section III - Remuneration, exclusive of Value Added Tax … 1.13 “WORK” shall mean all the work that the CONTRACTOR is required to carry out in accordance with the provisions of the CONTRACT, including the provision of all materials, services and equipment to be rendered in accordance with the CONTRACT … 4. CONTRACTOR’S GENERAL OBLIGATIONS 4.1 The CONTRACTOR shall provide all management, supervision, personnel, materials and equipment, (except materials and equipment specified to be provided by the COMPANY), plant, consumables, facilities and all other things whether of a temporary or permanent nature, so far as the necessity for providing the same is specified in or reasonably to be inferred from the CONTRACT. 4.2 The CONTRACTOR shall carry out all of its obligations under the CONTRACT and shall execute the WORK with all due care and diligence and with the skill to be expected of a reputable contractor experienced in the types of work to be carried out under the CONTRACT … 4.4 Equipment used to provide the service need not be new, without prejudice to the requirement that it shall be of good quality and fit for purpose. 4.5 In order to ensure that performance and completion of the WORK are not delayed or impeded the CONTRACTOR shall be responsible for the timely provision of all matters referred to in Clauses 4.1 and 4.4 and, where provided for elsewhere in the CONTRACT, for the timely request of COMPANY-provided materials, services and facilities. However, CONTRACTOR cannot be responsible for the timely delivery of Company-provided materials, services and facilities. If such are delivery late and cause delay in the performance and downtime of the CONTRACTOR’s equipment, COMPANY shall pay Standby time for such downtime … 5. OFFSHORE TRANSPORTATION … 5.2 The CONTRACTOR shall provide vessel transportation, vessel accommodation and vessel subsistence for up to 2 COMPANY VESSEL REPRESENTATIVE(S) for the duration of the offshore phase of the WORK at the cost of the CONTRACTOR and all such items shall be deemed to be included in the CONTRACT. COMPANY VESSEL REPRESENTATIVE(S) shall embark / disembark in the port of mobilisation / demobilisation in accordance with the schedule provided by CONTRACTOR. Delays to schedule due to non-availability of COMPANY VESSEL REPRESENTATIVE(S) that delay sailing shall be deemed Standby events and be charged at the applicable Standby Rates. If the COMPANY requires more than 2 COMPANY VESSEL REPRESENTATIVE on board, the cost for the additional persons will be agreed between Parties. 6. CONTRACTOR TO INFORM ITSELF … 6.2 Any failure by the CONTRACTOR to take account of matters which affect the WORK will not relieve the CONTRACTOR from its obligations under the CONTRACT. CONTRACTOR can’t be made responsible for extra work or time or damage that occurs solely because of a fault in the data or that of personnel supplied by the COMPANY, including loss of time during mobilisation of the vessel caused by COMPANY. If extra work, loss of time or damage is the consequence of a fault or omission by the COMPANY, CONTRACTOR will be entitled to file a VARIATION for extra work or charge Standby Time … 10. EXAMINATION AND DEFECTS CORRECTION … 10.2 Defects Correction … (b) It is the COMPANY’S duty to accept or reject the quality and completeness of data and/or samples as it is acquired and to record such in the Daily Project Report. In the event that data or samples are rejected for reasonable and acceptable reasons to both Parties, CONTRACTOR shall make all reasonable endeavours to re-acquire such data prior to leaving the WORKSITE. In the event data/samples cannot be re-acquired due to factors beyond CONTRACTOR’S direct control, CONTRACTOR and COMPANY VESSEL REPRESENTATIVES shall agree the appropriate course of action. The times detailed in the Daily Project Report as agreed between COMPANY and CONTRACTOR VESSEL REPRESENTATIVES, are the basis for invoicing. Any disputed times are to be noted as such in the Daily Project Report and are to be agreed between COMPANY and CONTRACTOR prior to completion of demobilisation. Notwithstanding the foregoing, nothing in this clause shall relieve the CONTRACTOR of its obligation to perform the WORK in accordance with the CONTRACT … 12. FORCE MAJEURE … 12.6 In the event that a Force Majeure occurrence exceeds 7 days, the COMPANY has the sole option to (i) retain CONTRACTOR on stand-by from first day of Force Majeure event until the Force Majeure event ceases at which point the CONTRACTOR shall recommence the WORK or (ii) terminate the CONTRACT. In the event of (i) above, the time on stand-by shall be paid at the relevant stand-by rate as set out in Section III – Remuneration. In the event of (ii) above, the time on stand-by and in transit to port shall be paid at the relevant stand-by or transit rate as set out in Section III – Remuneration. Additionally, in the event of (ii) above, the CONTRACTOR shall immediately de-mobilise and the de-mobilisation fee shall be paid plus any termination fees as set out in Section III – Remuneration and the COMPANY shall have no further liability to the CONTRACTOR of whatever nature. For the avoidance of doubt, the CONTRACTOR shall be entitled to payment at the Standby Rate during the first seven (7) days of Force Majeure. 13. SUSPENSION 13.1 The COMPANY shall have the right, by notice to the CONTRACTOR, to suspend the WORK or any part thereof to the extent detailed in the notice, for any of the following reasons; (a) subject only to Clause 13.3, in the event of some default on the part of the CONTRACTOR; or (b) in the event that suspension is necessary for the proper execution or safety of the WORK, or persons; or (c) to suit the convenience of the COMPANY … 13.4 Unless the suspension arises as a result of default on the part of the CONTRACTOR, the CONTRACTOR shall be reimbursed in accordance with the relevant provisions of Section III - Remuneration or, in the absence of such provisions, in accordance with Clause 11. In such case, the CONTRACTOR is entitled to receive at least Standby Rates during the term of suspension and any additional costs incurred due to this suspension … 14. TERMS OF PAYMENT 14.1 For the performance and completion of the WORK, the COMPANY shall pay or cause to be paid to the CONTRACTOR the amounts provided in Section III - Remuneration at the times and in the manner specified in Section III and in this Clause … 14.3 The CONTRACTOR shall submit to the COMPANY an invoice within thirty (30) days after the end of each calendar month or according to the schedule foreseen in Section III - Remuneration. Following completion of the whole of the WORK, the CONTRACTOR shall not be entitled to receive any payment on any invoice received by the COMPANY after the time specified in Appendix 1 to Section I – Form of Agreement as the latest time for receipt of invoices. Nevertheless the COMPANY may, at its sole discretion, make payment against any such invoice … 14.6 COMPANY shall make payment of each invoice received as foreseen in the Section III – Remuneration. If no specific terms are foreseen in this Section, then each invoice should be paid within 30 days from date of receipt. Payment shall be done into the bank account of the CONTRACTOR as specified on the invoice. 14.7 If the COMPANY disputes any items on any invoice in whole or in part or if the invoice is prepared or submitted incorrectly in any respect, the COMPANY shall notify the CONTRACTOR of the reasons and request the CONTRACTOR to issue a credit note for the unaccepted part or whole of the invoice as applicable. Upon receipt of such credit note the COMPANY shall be obliged to pay the undisputed part of a disputed invoice. If any other dispute connected with the CONTRACT exists between the parties the COMPANY may withhold from any money which becomes payable under the CONTRACT the amount which is the subject of the dispute. The COMPANY shall not be entitled to withhold monies due to the CONTRACTOR under any other contracts with the COMPANY as set off against disputes under the CONTRACT, nor shall it be entitled to withhold monies due under the CONTRACT as set off against disputes under any other contract. On settlement of any dispute the CONTRACTOR shall submit an invoice for sums due and the COMPANY shall make the appropriate payment in accordance with the provisions of Clause 14.6 and Clause 14.9 where applicable. 14.8 Neither the presentation nor payment or non-payment of an individual invoice shall constitute a settlement of a dispute, an accord and satisfaction, a remedy of account stated, or otherwise waive or affect the rights of the parties hereunder. In particular the COMPANY may correct or modify any sum previously paid in any or all of the following circumstances: (a) any such sum was incorrect; (b) any such sum was not properly payable to the CONTRACTOR; (c) any work in respect of which payment has been made and which does not comply with the terms of the CONTRACT. 14.9 Interest shall be payable for late payment of correctly prepared and adequately supported invoices. The amount of interest payable shall be based on the then current annual Bank of England ‘Base Rate’ plus the annual percentage stated in Appendix 1 to Section I – Form of Agreement and shall be calculated pro rata on a daily basis. In the absence of such percentage, the amount of interest shall be based on the then current annual Bank of England ‘Base Rate’ plus three percent (3%) per annum and shall be calculated pro rata on a daily basis. Interest shall run from the date on which the sum in question becomes due for payment in accordance with the provisions of Clause 14.6 until the date on which actual payment is made. Any such interest to be claimed by the CONTRACTOR shall be invoiced separately and within ten (10) working days of payment of the invoice to which the interest relates. Payment of the invoice claiming the interest shall be in accordance with the provisions of Clause 14.6 hereof … 18. LAWS AND REGULATION 18.1 The CONTRACTOR shall comply with all applicable laws, rules and regulations of any governmental or regulatory body having jurisdiction over the WORK and/or the WORKSITE. 18.2 The CONTRACTOR shall obtain all licences, permits, temporary permits and authorisations required by the applicable laws, rules and regulations for the performance of the WORK, save to the extent the same can only be legally obtained by the COMPANY … 28. GENERAL LEGAL PROVISIONS … 28.6 Notices All notices in respect of the CONTRACT shall be given in writing and delivered by hand, by telefax by email or by first class post to the relevant address specified in Appendix 1 to Section I - Form of Agreement and copied to such other office or offices of the parties as shall from time to time be nominated by them in writing to the other. Such notices shall be effective: (a) if delivered by hand, at the time of delivery; (b) if sent by telefax or by email, on the first working day at the recipient address following the date of sending; (c) if sent by first class post, 48 hours after the time of posting … 28.8 Entire Agreement The CONTRACT constitutes the entire agreement between the parties hereto with respect to the WORK and supersedes all prior negotiations, representations or agreements related to the CONTRACT, either written or oral. No amendments to the CONTRACT shall be effective unless evidenced in writing and signed by the parties to the CONTRACT … 34. PERMISSION AND PERMITS Company will be responsible for obtaining all necessary permissions to enable survey work to be carried out, including but not limited to, permits from the appropriate authorities for the vessel to operate in National waters of the country or operations, and for ensuring safe access within the area of survey operations …”
“Please find below Geoquip’s rates for this work.”
“Please refer to the LOGIC General Conditions of Contract for On- and Off-shore Services (Edition 2 - October, 2003) with Geoquip’s Exceptions on which these prices are based. The rates are exclusive any local taxes. It is understood security vessels will be provided from entry into Cameroon waters, during mobilisation, throughout fieldworks, through demobilisation and exit from Cameroon waters. The offer is subject to the Investigator arriving in Cameroon between 15th November and the31st December 2019 , and the contract is also contingent on the permits and license extension required for the site survey having been delivered prior to departure of the vessel to Cameroon. The offer is subject to contract signing by15th November 2019 and advanced payment of$250,000 to arrive in Geoquip’s Swiss bank account prior to departure of the vessel to Cameroon. Invoices will be generated and submitted by email on completion of each milestone (remainder mob, fieldwork, demob, reporting) to be applied first against the deposit and then to be paid within 30 days of delivery of preliminary report. In the event other work is commissioned for the Investigator in direct continuity with this work a reduction of 25% is offered on the mob/mob fee.”
“3 SCOPE OF WORK The client intends to carry out an offshore geotechnical site investigation to assess ground conditions for development of a jack-up rig, located offshore Victoria, Cameroon. The data obtained will be utilised to progress the design of a viable foundation, enabling the installation of a COSL jack up rig. Geoquip understands that the base scope of work for the Geotechnical Site Investigation comprises the following geotechnical sampling and testing operations; • 3 x 80m Boreholes with continuous PCPT • 1 x 80 m Boreholes continuous sampling as an option. The sample boreholes comprise composite push/piston sampling. In situ testing includes piezocone penetration tests (PCPTs) performed in downhole mode. The scope includes offshore and onshore laboratory testing, factual reporting and jack up penetration analysis. The water depth at the proposed location is approximately 35 metres … “8 REPORTING AND DELIVERABLES The following report and deliverables are forecasted. Additional modifications can be included at award of project in agreement with Tower Resources. 8.1 Pre-Project Documentation On receipt of a Letter of Award (LOA) and prior to commencement on site Geoquip will appoint a PM who will produce the following detailed site-specific documentation: • Project Safety Plan (PSP) • Project Execution Plan (PEP) • Emergency Response Plan (ERP) • Any other documentation required by Tower Resources 8.2 Daily Operations Reports A Daily Operations Report (DOR) will be prepared by the OPM and provided to the on board Tower Resources representative for approval. This report will contain the following information: • Summary of previous 24 hours operations • Time summary breakdown for previous 24 hours and to date • Work completed in previous 24 hours and to date • Observed weather conditions and weather forecast summary • Work planned for the next 24 hours • Lost and damaged equipment details • Number of personnel on board • Health safety and environmental events This report will be signed by the OPM and the on board Tower Resources representative and distributed accordingly via electronic mail. 8.3 Field Report At the end of the fieldwork a preliminary field report will be supplied to Tower Resources representative on board the vessel. In addition to the laboratory testing performed offshore a schedule of onshore laboratory testing will be produced at this time for approval. A final version of the field report will be produced within one week from Geoquip’s Geotechnical office. The field report will contain the following information as appropriate: … • Preliminary engineering assessments 8.4 Laboratory Testing and Reporting Laboratory Testing will be performed at one of Geoquip’s accredited laboratories followed by assessment of soil parameters for the materials encountered and final engineering assessment. Geoquip Standard Laboratory rates are presented in Appendix D. Following the results of the onshore laboratory testing and further engineering analyses a final Report will be issued. This final report will be presented approximately six weeks following approval of the laboratory testing schedule. Reporting evaluation and presentation of the geotechnical parameters, shall comply with Tower Resources requirements. All details on these reports will be agreed with Tower Resources upon contract award. Higher level reporting can be offered if required.”
“… In the month since you promised to support Tower with the extension to conduct the geotechnical survey and finalise the drilling of the well, we have done a great deal to ensure we meet our commitment … However, we are still waiting for the extension itself to be signed by the Minister, which is now threatening the project itself. Following our meeting a contract was quickly signed with Geoquip Marine for their geotechnical vessel (MV Investigator) … We have been granted a Normal Temporary Admission (ATN) by the customs office to clear the vessel, and the Rapid Intervention Battalion (BIR) has secured the vessel and the crew to avoid any security incident while in Cameroon water territory … Your Excellency, Tower has kept it[s] word and has accelerated the arrival of the vessel into Cameroon as soon as we left your office. The vessel has been performing maintenance activity in Douala while waiting for the extension letter to be delivered so that it can commence work. But this maintenance work has been completed some days ago, and we are now facing the risk of the vessel leaving Cameroon to undertake other work elsewhere if the promised extension is not received this week. If the vessel leaves Cameroon without conducting the survey, this will have a very negative impact on the project. It may be difficult to persuade Geoquip to return without extraordinary assurances, which may be costly. In the meantime, the stand-by rate to keep the vessel doing nothing at the port is between 70,000 to 80,000 US dollar per day, and this is simply not sustainable. As we have explained to you, Tower has already spent 12 million US dollars on this project, and is about to invest 15 million more in the coming months with the drilling of the Njonji Marine 003 well, and tens of millions of dollars after that on the subsequent development if all goes well … The one (1) year extension will allow us to complete the current work in progress in the First Exploration Period … We are still waiting for the extension letter this week, as promised by the Minister of Mines, Industry and Technological Development … Your Excellency, may we ask for your full support for getting the extension letter signed and delivered to us this week, to allow us to keep the Survey vessel in Cameroon. Otherwise we may lose this unique opportunity, which will delay all the work and increase costs …”
“… Presently, the crew is on board the vessel and waiting for the BIR to accompany the vessel for security purpose as usual, and as previously agreed with the BIR. Unfortunately, at the last minute the National Hydrocarbons Corporation interrupted the security measures put in place with the BIR for the escort and patrol during the offshore operation … and the vessel cannot operate without the security escort of the BIR. The cost to keep this survey vessel idle at port is over$80,000 /day … Your Excellency Mr President, this is an important project for Cameroon and for Tower and blocking the operation is … an existential threat to our project … On behalf of Tower Resources plc, I humbly ask your highest authority of your urgent assistance to ensure the continuation of this activity, as approved by both your Minister … and your Prime Minister …”
“It is settled that an estoppel by convention may arise where parties to a transaction act on an assumed state of facts or law, the assumption being either shared by them both or made by one and acquiesced in by the other. The effect of an estoppel by convention is to preclude a party from denying the assumed facts or law if it would be unjust to allow him to go back on the assumption … It is not enough that each of the two parties acts on an assumption not communicated to the other. But it was rightly accepted by counsel for both parties that a concluded agreement is not a requirement for an estoppel by convention.”
“As is clear from the seminal speech of Lord Steyn in Republic of India … an estoppel by convention can arise either where parties to a transaction act on a shared assumed state of facts or law or where one party to a transaction has made an assumption as to the state of facts or law and the other party acquiesces in that assumption.”
“52. In my judgment, the principles applicable to the assertion of an estoppel by convention arising out of non-contractual dealings, to be derived from Keen v. Holland, and the cases which comment upon it, are as follows: (i) It is not enough that the common assumption upon which the estoppel is based is merely understood by the parties in the same way. It must be expressly shared between them. (ii) The expression of the common assumption by the party alleged to be estopped must be such that he may properly be said to have assumed some element of responsibility for it, in the sense of conveying to the other party an understanding that he expected the other party to rely upon it. (iii) The person alleging the estoppel must in fact have relied upon the common assumption, to a sufficient extent, rather than merely upon his own independent view of the matter. (iv) That reliance must have occurred in connection with some subsequent mutual dealing between the parties. (v) Some detriment must thereby have been suffered by the person alleging the estoppel, or benefit thereby have been conferred upon the person alleged to be estopped, sufficient to make it unjust or unconscionable for the latter to assert the true legal (or factual) position.”
“51. It may be helpful if I explain in my own words the important ideas that lie behind the first three principles of Benchdollar. Those ideas are as follows. The person raising the estoppel (who I shall refer to as “C”) must know that the person against whom the estoppel is raised (who I shall refer to as “D”) shares the common assumption and must be strengthened, or influenced, in its reliance on that common assumption by that knowledge; and D must (objectively) intend, or expect, that that will be the effect on C of its conduct crossing the line so that one can say that D has assumed some element of responsibility for C’s reliance on the common assumption. 52. It will be apparent from that explanation of the ideas underpinning the first three Benchdollar principles that C must rely to some extent on D’s affirmation of the common assumption and D must (objectively) intend or expect that reliance. This is in line with the paragraph from Spencer Bower, The Law Relating to Estoppel by Representation, 4th ed (2004) p 189, which was cited by Briggs J just before his statement of principles: “In the context of estoppel by convention, the question here is whether the party estopped actually (or as reasonably understood by the estoppel raiser) intended the estoppel raiser to rely on the subscription of the party estopped to their common view (as opposed to each, keeping his own counsel, being responsible for his own view).”
“… While it is possible that there may be some differences required by the relevant contractual or non-contractual context …, it would appear that the Benchdollar principles are being viewed as general principles applicable to estoppel by convention. It is significant in this respect, that the present edition of Spencer Bower: Reliance-Based Estoppel, 5th ed (2017), chapter 8, centres its whole analysis of estoppel by convention on the Benchdollar principles. Although it is unnecessary to decide this in this case - and we heard no submissions on it - there appears to be no good reason to confine them to non-contractual dealings. In my view, the five Benchdollar principles, with the Blindley Heath amendment to the first principle, comprise a correct statement of the law on estoppel by convention for contractual, as well as non-contractual, dealings.”
“Itwas not disputed that for either kind of estoppel, the representation or common assumption as the case may be, must be unambiguous and unequivocal. That is inherent in the very nature of an estoppel”
“114. In order to found an estoppel (whether by convention or by representation), Mr Parker submitted, relying upon what Jacob LJ had to say in SmithKline Beecham plc v Apotex Europe Ltd[2007] Ch 71 at [102], that the assumption (in the case of the former) or the representation (in the case of the latter) must be “unambiguous and unequivocal” since that “is inherent in the very nature of an estoppel”
“… With respect, I find more persuasive the way in which the point was expressed in the leading judgment of Sir John Arnold P. After referring to the extensive argument on the need for a ‘representation’ to be clear and unequivocal to found an estoppel, he said that the same question did not arise in relation to estoppel by convention: ‘Since this is of a consensual character and the terms of the convention, just as those of a contract once the language is established by the evidence, must be interpreted by the court and the only true meaning is that decided upon by the court.’ …”. 115. Mr Parker submitted that this apparent conflict between two decisions of the Court of Appeal (three, if Troop is itself included) ought to be resolved by the Court favouring SmithKline Beecham, an authority which it appears was not cited to the Court of Appeal in ING Bank. His submission was that the analogy with a contract favoured by Sir John Arnold P in Troop (and approved by Carnwath LJ in ING Bank) is inapposite in an estoppel by convention case where the inquiry is as to the parties' conduct (or assumption) rather than as to what the language used in a contract means. Whether there is, indeed, a conflict, however, as suggested by Mr Parker is something about which I am not convinced since it seems to me that, in truth, what is required (consistent with all three authorities) is that there is clarity over what comprises the common assumption (if there is such a common assumption) as determined by the Court and not by the parties. If there is no such clarity, then, there will be no relevant convention and so no operable estoppel. In any event, as Mr Valentin acknowledged, the present case is not a case which turns on such subtleties.”
“How far an estoppel may assist in bringing about a cause of action, without standing alone as ‘a cause of action in itself’, has remained a matter of dispute over subsequent years. It may enlarge the effect of an agreement, by binding parties to an interpretation which would not otherwise be correct: see e.g. De Tchihatchef v Salerni Coupling Ltd[1932] 1 Ch 330 ; The Karen Oltmann [1976] 2 Ll Rep 708; and per Robert Goff J in Amalgamated Investment at p. 106A. In the Amalgamated Investment case itself, Lord Denning MR and, on the view I would prefer, Brandon LJ held that both the company and the bank were bound by their Conventional treatment of the company's guarantee of its subsidiary’s indebtedness to the bank as extending to such subsidiary's indebtedness to the bank's subsidiary (‘Portsoken’), thus entitling the bank to set up sums due under the guarantee, read in this extended sense, against the obligation that it otherwise had to account to the company for realisations which it had made.”
“74. I have considered whether this submission about the scope of estoppel by convention relates to the question whether estoppel by convention can create a cause of action (acting as a “sword”) or, in contrast, can operate only as a defence (acting as a “shield”). In Amalgamated Investment Brandon LJ examined this question in the context of estoppel by convention and said, at pp 131-132: “while a party cannot in terms found a cause of action on an estoppel, he may, as a result of being able to rely on an estoppel, succeed on a cause of action on which, without being able to rely on that estoppel, he would necessarily have failed. That, in my view, is, in substance, the situation of the bank in the present case.” 75. As a general proposition about the law on estoppel, Brandon LJ’s comment is too sweeping because it is clear that while, for example, promissory estoppel cannot create a cause of action (Combe v Combe[1951] 2 KB 215 , Baird Textiles Holdings Ltd v Marks & Spencer plc [2002] 1 All ER (Comm) 737), proprietary estoppel can (Crabb v Arun District Council[1976] Ch 179 ). 76. The particular concern about allowing promissory estoppel and estoppel by convention to create a cause of action is that this might undermine the requirement of consideration for the validity of a contract. However, that concern is not relevant to the facts of this case which do not concern contractual dealings. In any event, in the context with which we are concerned, even if one were to insist that the estoppel by convention can support, but must not create, a cause of action in relation to the mutual dealings between HMRC and a taxpayer, it would appear that that restriction is satisfied. The underlying duty to pay tax is imposed by statute and the estoppel relates merely to the dealings between HMRC and the taxpayer in connection with the procedure by which HMRC determine the correct amount of tax to be paid under the statute.”
“Q. It’s not correct, is it, that there were numerous occasions on which Mr Asher accepted that standby charges were payable by Tower Resources? A. Not in email correspondence, no. Q. So why did you write that sentence? A. I believe that I was probably referring to actual oral correspondence as well over the telephone, as detailed 2 also within the statement. We got telephone calls on 15th, 22nd and also 24 January, where myself and Mr Asher corresponded regarding the standby charges and this is sort of all related to when we were talking about the extension agreement. Q. What you’re saying in paragraph 47 is that there were numerous occasions in email correspondence that Mr Asher accepted that and that’s not right, is it? A. No, I accept that’s not completely correct, in hindsight.” (2) Later, during his oral evidence, Mr Harmon accepted that by14th January 2020 , when he was corresponding with Mr Hanse, Mr Asher had not by then accepted that Tower Cameroon was responsible for Standby Costs (transcript, day 3, pages 9-10) and again, by reference to para. 42 of Mr Asher’s witness statement: “Just pausing there. That’s consistent with what he told you in these telephone conversations, isn’t it? A. He didn’t say that he didn’t believe they were due at all. Q. But as you’ve already told us, he didn’t say that -- that Tower were accepting that they were due. He never said that, did he? A. Not directly Q. He never said it, did he, Mr Harmon? A. No.” (3) On22nd January 2020 , Mr Harmon had proposed to Mr Asher that there ought to be an extension of the Contract agreed. During his evidence, Mr Harmon stated that: Q. And that was the main concern on your part at this point, that the contract had actually come to an end; is that right? A. Absolutely, yes. Q. Because you’d received no assurance from Tower that the, at this point, standby charges were going to be paid, had you? A. No. Q. You never received such an assurance from Tower, did you, Mr Harmon? A. You believe in the signing of this contract extension it gave us a level of assurance that Tower Resources were at least aligned with Geoquip on where we stood at the project to date. Q. The level of assurance that you’re talking about is an assurance that your own interpretation of the contract was correct; that’s what you were talking about, isn’t it? A. Yes, it has to be of Geoquip’s interpretation of the contract, yes, of course.” (4) Towards the end of his evidence, Mr Harmon said further as follows (transcript, day 3, page 69): “Q. … I want to ask you this, please: throughout January 2020 -- in fact, at all stages, you and everybody else within Geoquip believed that Tower was liable under the contract that you’d signed for standby charges, correct? A. Correct. Q. You were never told by Mr Asher, were you, that Geoquip was entitled to levy those charges under the contract? A. Other than the points I’ve already directed you to, not a direct email stating those exact words, no.”
“Q. And Mr Asher goes on to say: “Whilst I did not wish to treat Geoquip’s views disrespectfully, I did not believe that standby hire should be due under the contract because we had agreed lump sums for mobilisation, the field work and the demobilisation and the structure of the agreement had been that mobilisation could not take place until everything was ready for the survey to take place.”
“An estoppel will only arise where the recital recites a statement of present fact. It will not arise where the recital purports to state the legal effect of the document. In CP Holdings Ltd v Dugdale, Park J said: “X and Y enter into an agreement: ‘Whereas we believe that the effect of the new agreement will be MNO, we now agree as follows.’ X later wants to argue that the effect of the new agreement on its true construction is not MNO, but is PQR instead. He is not estopped from doing so. He may have an uphill struggle in his arguments on construction, but he is not estopped from putting them forward. In a case like that it is rectification or nothing.”