Commercial Management (Investments) Ltd v Mitchell Design and Construct Ltd & Anor

Commercial Management (Investments) Ltd v Mitchell Design and Construct Ltd & Anor

Clause 12(d) of Regorco's standard terms was not incorporated into the sub-contract due to the amendments made by Regorco and Mitchell's acceptance of the counter-offer. Even if incorporated, the clause would not satisfy the reasonableness test under UCTA given the impracticality of compliance with the notice period for defects in groundworks.

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
Civil / Judgment on Preliminary Issues
Outcome
Preliminary issues determined in favour of Mitchell and CML; clause 12(d) not incorporated and does not provide a defence.
Legal Topics
Incorporation of Terms, Standard Terms and Conditions, Unfair Contract Terms Act 1977, Reasonableness Test, Time Bar Clauses
Contract Law Construction Law Incorporation of Terms Standard Terms and Conditions Unfair Contract Terms Act 1977 Reasonableness Test Time Bar Clauses

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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

Civil / Judgment on Preliminary Issues

Legal Issues

  1. 1 Was clause 12(d) of Regorco's standard terms incorporated into the sub-contract?
  2. 2 If incorporated, did the contract fall under Regorco's written standard terms for UCTA purposes?
  3. 3 Does clause 12(d) satisfy the reasonableness requirement under UCTA?

Ratio Decidendi

Clause 12(d) of Regorco's standard terms was not incorporated into the sub-contract due to the amendments made by Regorco and Mitchell's acceptance of the counter-offer. Even if incorporated, the clause would not satisfy the reasonableness test under UCTA given the impracticality of compliance with the notice period for defects in groundworks.

Court Disposition

Preliminary issues determined in favour of Mitchell and CML; clause 12(d) not incorporated and does not provide a defence.

Orders

  • Clause 12(d) of Regorco's standard terms is not incorporated into the sub-contract.
  • Clause 12(d) does not provide a defence to claims by CML or Mitchell.