Commercial Management (Investments) Ltd v Mitchell Design and Construct Ltd & Anor [2016] EWHC 76 (TCC) (20 January 2016)

Commercial Management (Investments) Ltd v Mitchell Design and Construct Ltd & Anor [2016] EWHC 76 (TCC) (20 January 2016)

Clause 12(d) of Regorco's standard terms, to the extent it applied to indemnity claims, was overridden by clause 15 of Mitchell's terms and was not incorporated for those claims. Even if incorporated for other claims, clause 12(d) would be subject to UCTA, and Regorco failed to show it satisfied the requirement of reasonableness given the practical difficulties in compliance and the nature of latent defects in groundworks.

Citation
[2016] EWHC 76 (TCC)
Parties
Claimant: Commercial Management (Investments) Limited; First Defendant: Mitchell Design and Construct Limited; Second Defendant: Regorco Limited (formerly Roger Bullivant Limited)
Jurisdiction
England and Wales
Judgment Date
20 January 2016
Procedural Posture
Preliminary Issues Trial (high Court, Technology and Construction Court) / Judgment on Preliminary Issues
Outcome
Preliminary issues determined in favour of Mitchell and CML; clause 12(d) not incorporated for indemnity claims and, if incorporated for other claims, fails UCTA reasonableness test.
Legal Topics
Incorporation of Terms, Standard Terms of Business, Unfair Contract Terms Act 1977 (ucta), Reasonableness of Exclusion Clauses, Time Bar Clauses, Interpretation of Contract Terms
Contract Law Construction Law Incorporation of Terms Standard Terms of Business Unfair Contract Terms Act 1977 (ucta) Reasonableness of Exclusion Clauses Time Bar Clauses Interpretation of Contract Terms

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Parties

Commercial Management (Investments) Limited

Claimant

Mitchell Design and Construct Limited

First Defendant

Regorco Limited (formerly Roger Bullivant Limited)

Second Defendant

Procedural Posture

Preliminary Issues Trial (high Court, Technology and Construction Court) / Judgment on Preliminary Issues

Legal Issues

  1. 1 Whether clause 12(d) of Regorco's standard terms was incorporated into the sub-contract
  2. 2 Whether clause 12(d) is subject to UCTA and, if so, whether it satisfies the reasonableness test

Ratio Decidendi

Clause 12(d) of Regorco's standard terms, to the extent it applied to indemnity claims, was overridden by clause 15 of Mitchell's terms and was not incorporated for those claims. Even if incorporated for other claims, clause 12(d) would be subject to UCTA, and Regorco failed to show it satisfied the requirement of reasonableness given the practical difficulties in compliance and the nature of latent defects in groundworks.

Court Disposition

Preliminary issues determined in favour of Mitchell and CML; clause 12(d) not incorporated for indemnity claims and, if incorporated for other claims, fails UCTA reasonableness test.

Orders

  • Clause 12(d) of Regorco's standard terms is not incorporated for indemnity claims.
  • If clause 12(d) is incorporated for other claims, it is subject to UCTA and fails the reasonableness test.