Battle Of The Forms - Look After Your Documents!

The importance of document retention for a party seeking to argue that its standard terms have been incorporated has been emphasised by the Court's decision in Allen Fabrications Limited v ASD Limited. Liane Bylett from our Commercial Disputes Team considers the points of best practice arising from this decision. The "battle of the forms" describes the process by which one party's standard terms of business is incorporated into the contract. The general rule is for whichever party "fired the last shot" to win i.e. the last set of terms referred to will usually (but not always) apply. Problems can arise when the parties cannot prove which of them fired the last shot because the paperwork has been lost, as was the case in Allen Fabrications Ltd v ASD Ltd [2012]. In looking at this case, it is accepted that paperwork may not just be a scrunched up docket at the back of a filing cabinet, but also an item of electronic data held on a sophisticated database. References to paperwork and documents should of course be seen in the context of current technology as well - the maxim will remain "keep it safe". Allen Fabrications contracted to provide parts for a steel platform for Bembridge Marine Limited. Allen Fabrications sub-contracted the supply of grating and clips to ASD. One of Bembridge's employees, Kevin Cleightonhills, fell through the platform and sustained serious head injuries. Judgment was entered against Bembridge in favour of Mr Cleightonhills and damages were agreed in the sum of circa £7m. Proceedings were brought against Allen Fabrications for a contribution and, in turn, Allen Fabrications sued ASD. ASD sought to rely upon its Standard Conditions of Sale which limited liability to the price of the goods supplied (which was naturally far less than the amount claimed). The initial quotation and other documents did not make any reference to either party's terms and conditions. However ASD claimed that when the goods were delivered to Allen, it would always have been accompanied by an Advice Note (with the terms on the reverse) to be signed as proof of delivery. However neither party had retained a copy of the Advice Note. Only once proof of delivery was obtained would an invoice would be...