Court Of Session Disapplies The 'Last Shot' Doctrine

The Scottish case of Specialist Insulation Ltd v Pro-Duct (Fife) Ltd [2012] CSOH 79 is one of the latest to consider contractual interpretation and provides a view on recent English judgements on the "battle of the forms". The Court of Session has found that the "last shot" doctrine is not always applicable where it is clear that this is inconsistent with the intentions of the parties. Pro-Duct (Fife) Ltd ("Pro-Duct") was a sub-contractor on a project at Edgbaston cricket ground. In connection with this, Pro-Duct asked Specialist Insulation Ltd ("SIL") for a quotation for the supply of ductwork. A quotation was provided marked as subject to its "standard terms and conditions of trading"; these were in turn subject to English law and the jurisdiction of the English courts. In addition the terms provided that: (i) Its conditions applied to the exclusion of any other set of terms unless otherwise agreed in writing; (ii) SIL's conditions would prevail in the event of inconsistency with any other term; and (iii) Any dispute should be referred to arbitration. Shortly after receiving the quotation, Pro-Duct issued a purchase order to SIL along with a Pro-Duct executed document titled "Material Supply Only Sub-contract Agreement" (the "Sub-contact"). This was never executed by SIL and was inconsistent with the terms of the purchase order (in particular, the Sub-contract provided that works were to be supplied on a labour only basis, as opposed to supply). There were also significant differences when compared with SIL's terms and conditions, in particular, Pro-Duct's provided for disputes to be referred to adjudication under the Scheme for Construction Contracts 1998 and was subject to the jurisdiction of the Scottish Courts. SIL failed to sign and return the Sub-contract, but proceeded to supply the ductwork which was duly accepted by Pro-Duct. By 2011 a dispute arose regarding payments due to SIL. SIL issued a notice of adjudication. The question then arose as to which set of terms was applicable. In an interesting twist, both parties sought to argue that the other party's terms and conditions applied. Pro-Duct challenged the adjudicator's jurisdiction on the basis that the contract was for supply only so therefore fell out with the scope of construction operations. They subsequently refused to pay the £85,500 plus VAT awarded to SIL and commenced court proceedings. Pro-Duct argued that, because the Sub-contract Agreement had not been executed by...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT