Legal Developments In Construction Law

• Published date: 14 December 2022
• Subject Matter: Real Estate and Construction, Construction & Planning
• Law Firm: Mayer Brown
• Author: Mayer Brown

1. When does a course of dealing result in t's & c's applying?

In deciding whether standard terms and conditions were incorporated in a contract for meat storage, the court reviewed case law, including

Transformers and Rectifiers Ltd v Needs Ltd,

which set out these principles in relation to a course of dealing:

• Where A makes an offer on its conditions and B accepts that offer on its conditions and, without more, performance follows, the correct analysis, assuming that each party's conditions have been reasonably drawn to the attention of the other, is that there is a contract on B's conditions.
• Where there is reliance on a previous course of dealing it does not have to be extensive. Three or four occasions over a relatively short period may suffice.
• The course of dealing by the party contending that its terms and conditions are incorporated has to be consistent and unequivocal.
• Where trade or industry standard terms exist for the type of transaction in question, it will usually be easier for a party contending for those conditions to persuade the court that they should be incorporated, provided that reasonable notice of the application of the terms has been given.
• A party's standard terms and conditions will not be incorporated unless that party has given the other party reasonable notice of those terms and conditions.
• It is not always necessary for a party's terms and conditions to be included or referred to in the documents forming the contract; it may be sufficient if they are clearly contained in or referred to in invoices sent subsequently.
• By contrast, an invoice following a concluded contract effected by a clear offer on standard terms which are accepted, even if only by delivery, will or may be too late.

The court also noted in the case law and textbook commentary that:

• as well as a course of dealing, in order to imply terms, they would have to be necessary for business efficacy or so obvious as to go without saying; and
• a statement that terms and conditions are available on a website may be sufficient, in the case of a contract between commercial parties.

Scotbeef Ltd v D&S Storage Ltd [2022] EWHC 2423

2. Court puts SCL Protocol and delay analysis methods in perspective

In deciding a dispute about significant cost increases and delay overruns on a bus station project the court had to deal with time and money claim issues, which included the status of the Society of Construction Law Protocol and the delay analysis methods it identifies.

There was criticism by delay experts of the selection of a delay analysis method and deviation from the chosen method but the court noted that the Protocol itself states that:

• its object is to provide useful guidance;
• it is not intended to be a contract document nor to be a statement of the law;
• its aim is to be consistent with good practice rather than a benchmark of best practice; and
• its recommendations should be applied with common sense.

It also states that: 'irrespective of which method of delay analysis is deployed, there is an overriding objective of ensuring that the conclusions derived from that analysis are sound from a common sense perspective'.

The court said it would be wrong to proceed on the basis that, because the SCL Protocol identifies six commonly used methods of delay analysis, an expert can only choose one such method and any deviation from that approach renders their opinion fundamentally unreliable. The common objective of each method is to enable the assessment of the impact of any delay to practical completion caused by particular items on the critical path. The court did, however, accept that, if an expert...