CORRECTIONS TO DOM/1 HELD NOT TO HAVE BEEN INCORPORATED INTO SUB-CONTRACT

Aqua Design and Play International Ltd and Fenlock Hansen Ltd v Kier Regional Council [2002] EWCA Civ 797, [2003] BLR 111

The Court of Appeal in Aqua Design and Play International Ltd and Fenlock Hansen Ltd v Kier Regional Council [2002] EWCA Civ 797, [2003] BLR 111 held that the parties had incorporated into their sub-contract the terms of DOM/1 without the corrections which were published by the Construction Confederation in July 1998. In so concluding, the Court of Appeal held that regard could not be had to the pre-contractual negotiations for the purpose of ascertaining the intention of the parties and that individual terms should be interpreted in their context and that, in this respect, undue weight should not be attached to dictionary meanings of individual words in particular clauses. One factor which weighed heavily with the court in concluding that the reference was to the uncorrected version of DOM/1 was that the contract methodically incorporated most (but not all) of the corrections to DOM/1 into the sub-contract. If the parties had intended to refer to the corrected version of the contract, there would have been no point in setting out the corrections in the contract in this way.