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ARTICLE · 14 DECEMBER 2016

Battle Of The Forms And Exclusion Clauses – Be Reasonable!

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This case highlighted the importance of clarity in agreeing the terms upon which subcontracts are made and demonstrated how an exclusion clause can fall foul of the UCTA...

United KingdomReal Estate and Construction
Matthew Pexton
Matthew Pexton

Commercial Management (Investment) Ltd v Mitchell Design & Construct Ltd & Anor [2016] EWHC 76 (TCC)

Subcontracts: offer and acceptance and reasonableness

This case highlighted the importance of clarity in agreeing the terms upon which subcontracts are made and demonstrated how an exclusion clause can fall foul of the Unfair Contract Terms Act 1977 ("UCTA") even where both parties were commercial entities and not dealing as consumers.

Whose Terms?

The contractor, Mitchell, invited the subcontractor, Regorco (formerly Roger Bullivant), to tender for groundwork. Following a lengthy contract negotiation (during which the works were completed) Mitchell sent Regorco a purchase order based upon their standard terms of business. Regorco amended the terms and conditions and counter-signed the purchase order. The Court decided, in keeping with the longstanding legal principle of the 'battle of the forms', that Regorco had 'fired the last shot' and so Mitchell's

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