Fitzroy Robinson Ltd v Mentmore Towers Ltd & Others [2009] EWHC 1552 (TCC)  

In relation to the payment of FRL, the point between the parties was whether they were entitled to be paid in monthly instalments as they fell due in accordance with the schedule to the contract, regardless of the precise services being undertaken during that period and/or regardless of the delays, if there were any, to the programme. Here, there was a speci c link in the contract between the performance of FRL and the manner in which they were paid. For example, clause 10.1 said that “subject to the consultant performing these services in accordance with this agreement, the employer shall pay to the consultant the fee set out in the payment schedule…”.  

Therefore, the real question was when and how any adjustment to the monthly fee instalments should be made. In the view of the Judge, the contract provided for the ability to adjust instalments if as a result of delays to the project, the services being performed in any given month were not those which had been used for the purposes of arriving at the monthly instalment. There was an express link between the services performed and the fees due and between the services and the time in which they were to be performed. There was a further obligation on FRL to perform in accordance with the programme and their entitlement to the instalments was dependent upon such performance.  

The Judge’s view was that any such adjustments should re# ect the services performed and should utilise the rates set out in the contract. However, at this stage in the proceedings, the Judge declined to make any speci c adjustment itself, because the defendants had not set out their case in full in this regard.