Ruttle Plant Hire Ltd v The secretary of state for environment, food and Rural Affairs [2006] EWHC 3426 (TCC)

"1. These rates apply only to plant already on site exclusive of drivers and attendance but inclusive of fuel and consumable stores, unless stated to be charged in addition, repairs and maintenance and insurance of plant but excluding time spent on general servicing. "1A. Where plant is hired in specifically for Dayworks: plant hire (exclusive of drivers and attendance) fuel, oil and grease, insurance, transport et cetera to be charged at full amount of invoice (without deduction of any cash discount not exceeding 2.5%) to which should be added consumables where supplied by the contractor, all plus 12.5%."

"Contractors' Charges. "

"Please find attached for your consideration and approval plant rates for plant usage on the farms currently being worked on and any future premises instructed. "

"Further to telephone conversation earlier, please find attached for your information and approval our interim application to 20.08.00. "

"Following the meeting here on 10th October, which was attended by you, representing Ruttle Plant Hire, Theresa Phillips, Head of Swine Fever Disease Control Centre and her colleagues, Alick Simmons,Bob Bentham and I, Theresa asked me to write to you recording the main points of our discussion. "

"We write with regard to a matter which was discussed with Norma Cooper and await a reply from her on this matter. "

"Further to the meeting of today's date to discuss matters in dispute on the invoices submitted on the provision of plant and labour during the current of outbreak of classical swine fever. "

"I understand that MAFF is paying for a pool of equipment to be kept locally in readiness for use in our disease control operations. If the equipment had been accounted for properly it should have been recorded as being held in the pool and not on farm hire. Can we confirm that we are not being invoiced twice for this equipment, i.e. on farm and in the pool?"

"There currently appeared to be two schedules of rates, one for swine fever and one for foot and mouth. The present exercise was involved solely with foot and mouth, although the foot and mouth schedule referred back to the swine fever schedule with respect to a number of items. "

"Re: Classic Swine Fever Outbreak. "

"Further to our letter of 12th instant you are, of course, aware that following the orders made in the litigation between our respective clients on 13th February by His Honour Judge Thornton an abridged timetable for trial have been ordered. The arrangements for that trial will require the personnel and resources of the company to be utilised in those trial preparations and they will have neither the time nor the personnel available to respond to your client's letter of 30th January 2004 in detail. "

"Your Clients will recall that the agreed labour rate for the foot and mouth work was £17.70 per hour with no payment for overtime. Our Clients have recalculated the labour element for the swine fever work on that basis which has the advantage of resolving completely the overtime issue. On a comparative basis and on the assumption that midweek overtime is correctly chargeable then there is a very modest saving to your Clients. "

"Labour. 2. Was it a term of the contract between the parties that the claimant would deduct from its labour charges a 30-minute meal break per labourer or working foreman per day? 3. Was a term to be implied into the contract between the parties to the effect that the Claimant was entitled to charge the Defendant an additional "administration charge" of 3% on labour charges? 3a. Is the work described by Mr Carrol at paragraphs 49 to 53 of his witness statement dated 20th October 2006 properly described as tasks carried out by "working foremen" so as to permit the claimant to recover at the agreed labour rate of £17.70 per hour for that work under the express alternatively applied term pleaded at paragraph 62 of the defence and counterclaim or is the value of that work recoverable if at all elsewhere? Plant. 4. What, if any, plant hire rates were agreed between the parties for plant and equipment supplied by the claimant to the defendant to deal with the outbreak of CSF in Bury St Edmunds between August 2000 and June 2001? 5. In particular, did Clause 1A of the 'Schedule of Dayworks Carried Out Incidental to Contract Work' produced by the Federation of Civil Engineering Contractors, dated 22nd January 1990, form part of the agreement between the parties to the effect that for those items of plant which the claimant obtained from subcontractors, the claimant was only entitled to charge the defendant cost plus 12.5%? 6. If Clause 1A of the Schedule of Dayworks Carried Out Incidental to Contract Work produced by the Federation of Civil Engineering Contractors, dated 22nd January 1990, forms part of the agreement between the parties, is plant to be considered as having been obtained from subcontractors for the purposes of the schedule, in circumstances where plant was provided to Ruttle Plant Hire Limited from within the Ruttle Group? 7. It being agreed between the parties that the CPA model conditions for the hiring of plant applied to the contract, what is the meaning of clause 24 and what is its application to this contract? 8. If there was no concluded agreement between the parties as to the aforementioned plant hire rates, what would have been a reasonable rate for the claimant to have charged the defendant for plant and equipment supplied by it to the defendant to deal with the outbreak of CSF in Bury St Edmunds between August 2000 and June 2001? 9. Was the claimant contractually entitled to charge the defendant hourly hire rates for vehicles such as vans and station wagons where mileage was also charged for the use of those vehicles by foremen and senior staff? 10. Was the claimant contractually entitled to charge the defendant for plant (apart from scaffolding) that remained on site during close-down over holiday periods, e.g. Christmas and New Year, when there was no labour on site to use the plant? If so, at what rates and for what period of time was the claimant entitled to make such charges? 11. Was the claimant contractually entitled to charge the defendant for plant in the following circumstances: (a) whilst plant remained unused on site at an infected premises pending demobilisation (for example, after cleansing and disinfection had been completed) and during the period when plant remained on site, there was no longer any labour on site to operate the plant; (b) where the claimant has removed plant from an infected premises, stored it at another location pending demobilisation and, during the period when the plant was stored at another location, no use was being made of the plant; (c) where the claimant has been instructed by the defendant to remove the plant from site as recorded in the defendant's APO/CPH records? If so, at what rates and for what period of time was the claimant entitled to make such charges? Materials. 13. Was the claimant contractually entitled to charge the defendant for those items set out in paragraph 106 of the defence and part 20 counterclaim? Late Payment of Commercial Debts (Interest) Act 1998 15. Pursuant to section 5 of the Late Payment of Commercial Debts (Interest) Act 1998, should any interest be paid on any sums due to the claimant for the period from 30th May 2004 to 11th February 2005 and, if so, how much?"

"Chargeable time for each man would be from leaving depot until actual time returned to depot."

"Hire rates for equipment as CPA conditions to be notified."

"NOTICE OF TERMINATION OF CONTRACT "

"Usage may be admitted to explain the language used in a written contract or to add an implied incident to it, provided that if expressed in the written contract it would not make its terms or its tenor insensible or inconsistent (see Palgrave Brown & Son Ltd v Owners of SS Turid). "

"When implied from usage or custom. If there is an invariable, certain and general usage or custom of any particular trade or place, the law will imply on the part of one who contracts or employs another to contract for him upon a matter to which such usage or custom has reference a promise for the benefit of the other party in conformity with such usage or custom; provided there is no inconsistency between the usage and the terms of the contract. To be binding, however, the usage must be notorious, certain and reasonable and not contrary to law; and it must also be something more than a mere trade practice."

"(a) Small tools and personal safety equipment (with the exception of paper suits). "(b) Equipment including fax machines, printers, coffee percolators and catering boilers. "(c) Utility charges for gas and electricity, and rent and council tax charges for the claimant's rented accommodation for management and facilities for storage of equipment and materials. "(d) Electrical repairs to the claimant's machinery and electrical works to its welfare facilities and portacabins. "(e) Food beverages and household sundries, including Frascati wine, Lambrusco wine, White wine, Claret, Jacob's Creek wine, fresh chicken, fresh bacon rashers, fresh pasta sauce, sandwiches, pastries, cakes, fruit, polish, toothpaste and herbal bath salts. "(f) Vehicle fuel, gas and diesel. "(g) Telephone equipment and telephone charges. "(h) Repairs and lost equipment, excluding punctures. "(i) Film processing."

"Consumables, e.g. brushes, special protective clothing, to be charged at cost."

"Was the claimant contractually entitled to charge the defendant for those items set out in paragraph 106 of the defence and part 20 counterclaim? In particular: (i) Did those items fall within the consumables clause? (ii) Did those items fall within clause 13(b) or clause 28 of the CPA conditions? (iii) Were those items chargeable in the event that they were purchased by Ruttle at the request of MAFF?"

"BREAKDOWN REPAIRS AND ADJUSTMENT ... "(d) The Hirer shall be responsible for all expense involved arising from any breakdown and all loss or damage incurred by the owner due to the Hirer's negligence, misdirection or misuse of plant, whether by the Hirer or his servants, and for the payment of hire at the appropriate idle time rate during the period the plant is necessarily idle due to such breakdown or damage. The Owner will be responsible for the cost of repairs to the plant involved in breakdowns from all other causes and will bear the cost of providing spare parts."

"HIRER'S RESPONSIBILITY FOR LOSS AND DAMAGE. "(a) For the avoidance of doubt it is hereby declared and agreed that nothing in this clause affects the operation of clauses 5, 8 and 9 of this agreement. "(b) During the continuance of the hiring period the Hirer shall, subject to the provisions referred to in subparagraph (a), make good to the Owner all loss of or damage to the plant from whatever cause the same may arise, fair wear and tear excepted, and except as provided in Clause 9 herein, and shall also fully and completely indemnify the Owner in respect of all claims by any person whatsoever for injury to person or property caused by or in connection with or arising out of the use of the plant and in respect of all costs and charges in connection therewith, whether arising under statute or common law. In the event of loss of or damage to the plant, hire charges shall be continued at idle time rates until settlement has been effected."

"FUEL, OIL AND GREASE. "

"(1) This section applies where, by reason of any conduct of the supplier the interests of justice require that statutory interests should be remitted in whole or in part in respect of a period for which it could otherwise run in relation to a qualifying debt. "(2) If the interests of justice require that the supplier should receive no statutory interest for a period, statutory interest shall not run for that period. "(3) If the interests of justice require that the supplier should receive statutory interest at a reduced rate for a period, statutory interest shall run at such rate as meets the justice of the case for that period. "(4) Remission of statutory interest under this section may be required- "(a) by reason of conduct at any time (whether before or after the time at which the debt is created); and "(b) for the whole period for which statutory interest would otherwise run or for one or more parts of that period. "(5) In this section 'conduct' includes any act or omission."