Building Law Monthly

In Tekdata Interconnections Ltd v Amphenol Ltd [2009] EWCA Civ 1209, [2009] All ER (D) 208 (Nov) the Court of Appeal applied the traditional offer and acceptance analysis to a ‘battle of the forms’ case. The value of the traditional analysis was held to be that it provides a degree of certainty which is both desirable and necessary in order to promote effective commercial relationships. On this basis the Court of Appeal held that, where A makes an offer on its terms and conditions and B accepts that offer on its own, different terms and conditions and, without more, performance follows, the contract between the parties is governed by B’s terms and conditions. This approach is not without its exceptions but it was held that it is difficult to displace the traditional analysis in the absence of a clear course of dealing between the parties which results in an outcome different from that achieved as a result of the application of the traditional analysis.

In Strange v Westbury Homes (Holdings) Ltd [2009] EWCA Civ 1247, [2010] All ER (D) 148 (Jan) the Court of Appeal held that the trial judge had been entitled to rely upon lump sum quotations obtained by the claimants when seeking to assess the cost of carrying out repairs to property which had not been built in ‘a thorough and workmanlike manner.’ The Court of Appeal also held that the claimants were entitled to recover damages in respect of the residual diminution in value of their property following the successful completion of the remedial works because they had provided ‘cogent evidence’ of the existence of a loss of this kind.

In Supablast (Nationwide) Ltd v Story Rail Ltd [2010] EWHC 56 (TCC), [2010] All ER (D) 136 (Jan) Mr Justice Akenhead rejected a jurisdictional challenge to a decision of an adjudicator made on the basis that there were two sub-contracts in existence between the parties and not one as had been held by the adjudicator. He held that that there was no real prospect of it being established that there were two sub-contracts in existence between the parties. He also held that estoppel by convention applied to preclude the defendant from maintaining that the parties had concluded two separate contracts. There being no real prospect of the defendant being able to defend the claim, summary judgment was granted to enforce the decision of the adjudicator.

In Supershield Ltd v Siemens Building Technologies FE Ltd [2010] EWCA Civ 7, [2010] All ER (D) 113 (Jan) the Court of Appeal held that the claimant was entitled to recover from the defendant the amount it had agreed to pay in order to settle the claims which had been brought against it. In rejecting the submission that the settlement sum was not reasonable, the court held that the trial judge had not under-estimated the strength of the defences available to the claimant. One of these defences was that the loss was too remote a consequence of the breach. The Court of Appeal affirmed that the law on remoteness is grounded on the policy that the loss recoverable by the victim should be limited to loss from which the party in breach may reasonably be taken to have assumed a responsibility to protect the victim. This being the case, the question of remoteness cannot be isolated from consideration of the purpose of the contract and the scope of the contractual obligation.