BPC High Distinction Opinion Writing Sample 2023/2024
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Course
BPC
Institution
BPC
This was my opinion regarding variation of contract, economic duress and freezing injunctions. There is also a research trail attached. I got a High Distinction (91%) for this and hope this may serve as a sample for your opinion writing.
1. I am instructed to advise Stadium Delight Limited (“SDL”) as to whether New
Football Works Contractors Limited (“NFWL”) were in breach of contract for
failing to deliver the service at the original contract price and whether coercion
or force could be made out on the facts surrounding the contract.
2. I am also asked to advise as to: (i) the potential remedies available to SDL
under the given circumstances against NFWL; and (ii) the merits of and the
procedure for SDL seeking an injunction to freeze the assets of NFWL, in light
of the information provided in the news report.
FACTUAL BACKGROUND
3. Stretford Reds secured an agreement with a broadcaster valued at £100
million for exclusive broadcast rights to their matches. The inaugural match
under this agreement was scheduled for the end of March 2024, and the
broadcaster paid £2.5 million for exclusive TV and online streaming rights to
this match.
4. SDL, a construction company based in Milton Keynes, successfully secured
the contract for expanding Stretford Reds’ stadium (“Main Contract”). A
specific requirement stipulated by Stretford Reds was that the steel used in
the stadium’s construction must be capable of withstanding the movement
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, associated with crowds at sporting events and music concerts. The bid for this
project was £3 million, inclusive of VAT, with a completion deadline of 16 th
March 2024 (“Main Contract Deadline”). Failure to meet this deadline would
subject SDL to a penalty of 10% of the £2.5 million contract value,
approximately £250,000.
5. NFWL, a specialised company in steel treatment, construction and delivery,
entered into a sub-contract with SDL for the manipulation of steel girders,
amounting to £1.6 million including VAT, to meet the stadium’s structural
requirements (“Sub-Contract”). The contract specified that SDL would deliver
the steel girders to NFWL’s factory by 5 th April 2023 and NFWL would treat the
girders at their facility, returning them to SDL by 20 th December 2023 (“Sub-
Contract Deadline”).
6. The steel girders were duly delivered to NFWL’s factory in April 2023 as per
the agreement.
7. However, following a letter from SDL, NFWL responded on 5th June 2023,
citing unanticipated workload and cashflow problems, asserting their inability
to complete the contract for any less than £2 million, including VAT.
8. SDL attempted to explore alternative service providers capable of providing
similar services within a short timeframe. While one or two other potential
providers were identified, they were either engaged with existing projects or
unable to commit to the required production and delivery schedules.
9. Via a letter dated 7th June 2023, SDL agreed to the revised price of £2 million,
inclusive of VAT, on the condition that the girders were manipulated and
delivered according to the original agreement by 20 th December 2023.
10. However, NFWL missed the Sub-Contract Deadline by five days, and the
girders were only delivered to SDL on 25 th December 2023. This delay
subsequently caused a chain reaction, leading to SDL’s inability to meet the
Main Contract Deadline. Consequently, SDL incurred a penalty of £250,000
payable to Stretford Reds.
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, BREACH OF CONTRACT
11. I shall provide advice on whether NFWL breached the contract for failing to
deliver the service at the original contract price by first considering whether
the attempted contractual variation through the correspondence between the
parties dated between 5th June 2023 to 7th June 2023 was legally binding.
Variations
12. Given that a contractual variation essentially establishes a new contract
between the parties, determining whether a contractual variation occurred
depends on whether the contractual variation satisfies the usual requirements
for establishing a binding agreement. Generally, parties may vary its
contractual terms through mutual agreement, provided that:
i. Any necessary formalities are complied with; and
ii. Consideration is given.
Formalities
13. Where the original contract is in writing, it is common practice to include a
variation clause. Some variation clauses stipulate that parties must discuss
and negotiate any proposed variation only within a pre-determined process
and format. In the present case, it seems that the Instructing Solicitors have
yet to review the contract between SDL and NFWL. It would be helpful if the
Instructing Solicitors could obtain a copy of the contract to verify whether the
parties have agreed upon any terms regarding future variations.
14. In the absence of a variation clause in the contract, it is likely that the variation
through the correspondence between the parties would be legally binding.
Since the original contract between the parties was evidenced in writing, any
variation must also be evidenced in writing (Chitty on Contracts, 35th edn.,
Vol. 1, paragraph 26-036). This was clearly satisfied here.
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