Countrywide Communications Limited v ICL Pathway Ltd: 1996

The court considered the authorities bearing on the question of whether or not a claim under a quantum meruit can successfully be made for work done in anticipation of a contract which does not materialise. Strauss J concluded: ‘I have found it impossible to formulate a clear general principle which satisfactorily governs the different factual situations which have arisen, let alone those which could easily arise in other cases. Perhaps, in the absence of any recognition in English law of a general duty of good faith in contractual negotiations, this is not surprising. Much of the difficulty is caused by attempting to categorise as an unjust enrichment of the defendant, for which an action in restitution is available, what is really a loss unfairly sustained by the plaintiff. There is a lot to be said for a broad principle enabling either to be recompensed, but no such principle is clearly established in English Law. Undoubtedly the court may impose an obligation to pay for benefits resulting from services performed in the course of a contract which is expected to, but does not, come into existence. This is so, even though, in all cases, the defendant is ex hypothesi free to withdraw from the proposed contract, whether the negotiations were expressly made ‘subject to contract’ or not. Undoubtedly, such an obligation will be imposed only if justice requires it or, which comes to much the same thing, if it would be unconscionable for the plaintiff not to be recompensed.
Beyond that, I do not think that it is possible to go further than to say that, in deciding whether to impose an obligation and if so its extent, the court will take into account and give appropriate weight to a number of considerations which can be identified in the authorities. The first is whether the services were of a kind which would normally be given free of charge. Secondly, the terms in which the request to perform the services was made may be important in establishing the extent of the risk (if any) which the plaintiffs may fairly be said to have taken that such services would in the end be unrecompensed. What may be important here is whether the parties are simply negotiating, expressly or impliedly ‘subject to contract’, or whether one party has given some kind of assurance or indication that he will not withdraw, or that he will not withdraw except in certain circumstances. Thirdly, the nature of the benefit which has resulted to the defendants is important, and in particular whether such benefit is real (either ‘realised’ or ‘realisable’) or a fiction, in the sense of Traynor CJ’s dictum[22]. Plainly, a court will at least be more inclined to impose an obligation to pay for a real benefit, since otherwise the abortive negotiations will leave the defendant with a windfall and the plaintiff out of pocket. However, the judgment of Denning L.J. in the Brewer Street case suggests that the performance of services requested may of itself suffice amount to a benefit or enrichment. Fourthly what may often be decisive are the circumstances in which the anticipated contract does not materialise and in particular whether they can be said to involve ‘fault’ on the part of the defendant, or (perhaps of more relevance) to be outside the scope of the risk undertaken by the plaintiff at the outset. I agree with the view of Rattee J. that the law should be flexible in this area, and the weight to be given to each of the factors may vary from case to case.’


Nicholas Strauss QC J


[1996] C No 2446


England and Wales


CitedJenning and Chapman Ltd v Woodman Matthews and Co 1952
. .
CitedBrewer Street Investment v Barclays Woollen Co CA 1953
A prospective tenant for whom a landlord had carried out alterations on the premises was not permitted to break off negotiations for the lease solely to escape liability for the cost of such alterations. Lord Denning said: ‘What, then, is the . .
CitedWilliam Lacey (Hounslow) Ltd v Davis 1957
The builder tendered for work, apparently not on the basis that the tender might or might not be accepted but so that the owner could use the tender for what was described as ‘some extraneous or collateral purpose’, for negotiating a claim for . .
CitedBritish Steel Corporation v Cleveland Bridge and Engineering Co Ltd 1983
An ‘if contract’ is where one party makes an offer capable of acceptance on the basis that ‘if you do this for us, we will do that for you’. Often used in the construction industry.
Goff J said: ‘the question whether . . any contract has come . .
CitedMarston Construction C Ltd v Kigass Ltd 1989
. .
CitedRegalian Properties Plc and Another v London Docklands Development Corporation ChD 25-Jan-1995
Negotiations intended to result in a contract were expressly on the basis that each party was free to withdraw from the negotiations at any time, the costs of a party in preparing for the intended contract were incurred at its own risk and it was . .

Cited by:

CitedMSM Consulting Ltd v United Republic of Tanzania QBD 30-Jan-2009
The claimants sought commission or a quantum meruit for the part they had taken in finding a suitable site for the defendant’s High Commission in London.
Held: The works undertaken were consistent with the claimant seeking work from the . .
Lists of cited by and citing cases may be incomplete.


Updated: 02 May 2022; Ref: scu.280268