Aqua Design & Play International Ltd (t/a Aqua Design) & Anor v Kier Regional Ltd (t/a French Kier Anglia) & Anor [2002] EWCA Civ 797 (14 May 2002)

Aqua Design & Play International Ltd (t/a Aqua Design) & Anor v Kier Regional Ltd (t/a French Kier Anglia) & Anor [2002] EWCA Civ 797 (14 May 2002)

The reference in Article 1.3 to the DOM/1 conditions 'published by the Construction Confederation' must be construed, in the context of the contract as a whole and the bespoke amendments, as referring to the uncorrected conditions. The methodical inclusion of most, but not all, corrections in Kier's amendments, and...

Source-derived case information.

Citation
[2002] EWCA Civ 797
Parties
Claimant/respondent: Aqua Design & Play International Limited (in liquidation) (trading as Aqua Design); Claimant/respondent: Fenlock Hansen Limited (trading as Fendor Hansen); Defendant/appellant: Kier Regional Limited (trading as French Kier Anglia)
Jurisdiction
England and Wales
Judgment Date
14 May 2002
Procedural Posture
Civil Appeal / Appeal From Queen's Bench Division on Preliminary Issue
Outcome
Appeal allowed
Legal Topics
Incorporation of Contract Terms, Interpretation of Standard Form Contracts, Contra Proferentem Rule, Subcontractor Payment Provisions, Construction Industry Standard Forms
Contract Law Construction Law Incorporation of Contract Terms Interpretation of Standard Form Contracts Contra Proferentem Rule Subcontractor Payment Provisions Construction Industry Standard Forms

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Parties

Aqua Design & Play International Limited (in liquidation) (trading as Aqua Design)

Claimant/respondent

Fenlock Hansen Limited (trading as Fendor Hansen)

Claimant/respondent

Kier Regional Limited (trading as French Kier Anglia)

Defendant/appellant

Procedural Posture

Civil Appeal / Appeal From Queen's Bench Division on Preliminary Issue

Legal Issues

  1. 1 Whether condition 32.1 of the DOM/1 standard form was incorporated into the subcontracts between Kier and the subcontractors
  2. 2 Whether the reference to 'published by the Construction Confederation' in Article 1.3 referred to the corrected or uncorrected conditions

Ratio Decidendi

The reference in Article 1.3 to the DOM/1 conditions 'published by the Construction Confederation' must be construed, in the context of the contract as a whole and the bespoke amendments, as referring to the uncorrected conditions. The methodical inclusion of most, but not all, corrections in Kier's amendments, and the deliberate omission of the deletion of condition 32.1, demonstrates the parties' intention to incorporate the uncorrected conditions, including condition 32.1. There is no ambiguity requiring application of the contra proferentem rule.

Court Disposition

Appeal allowed

Orders

  • Order of the judge set aside
  • Preliminary issue answered in the affirmative (condition 32.1 incorporated)