Incorporation of terms

In Scotbeef Ltd v D&S Storage Ltd (in liquidation) [2022] EWHC 2434 (TCC), HH Judge Kelly, sitting as a Judge of the High Court, held that the defendant had failed to establish that a set of terms on which it sought to rely had been incorporated into the contract between the parties. The evidence was held not to establish that the terms were in standard use and, on the evidence, the defendant had not established that reasonable steps had been taken to draw the terms to the attention of the claimant. Judge Kelly also held that a term which placed a limit on the time within which the claimant could bring a claim against the defendant was not, for the purposes of the rules relating to the incorporation of terms, an onerous term. Finally, Judge Kelly held that, had it been necessary to do so, she would have concluded that the terms passed the reasonableness test to be found in the Unfair Contract Terms Act 1977. However, the failure of the defendant to persuade the court that the terms on which it sought to rely by way of defence had been incorporated into the contract underlines the importance of taking reasonable steps to ensure that terms are incorporated into a contract.