Battle Of The Forms – Look After Your Documents!

The importance of document retention for a party seeking to argue that its standard terms have been incorporated has been emphasised by the Court's decision in Allen Fabrications Limited v ASD Limited. Liane Bylett from our Commercial Disputes Team considers the points of best practice arising from this decision.

The "battle of the forms" describes the process by which one party's standard terms of business is incorporated into the contract. The general rule is for whichever party "fired the last shot" to win i.e. the last set of terms referred to will usually (but not always) apply. Problems can arise when the parties cannot prove which of them fired the last shot because the paperwork has been lost, as was the case in Allen Fabrications Ltd v ASD Ltd [2012].