Cases - L Brown & Sons Ltd v Crosby Homes (North West) Ltd
Record details
- Name
- L Brown & Sons Ltd v Crosby Homes (North West) Ltd
- Date
- (2005)
- Citation
- EWHC 3503 (TCC)
- Legislation
- Keywords
- Adjudication - jurisdiction - damages - contract amendment
- Summary
-
Crosby Homes sought a declaration from the court that an adjudicator appointed to determine a dispute between it and L Brown & Sons had no jurisdiction and that his decision was, therefore, of no legal effect. The parties had contracted under an amended version of the JCT 1998 standard form of Building Contract with contractor's Design. Article 5 of the standard form provided that any dispute arising 'under this contract' could be referred to adjudication in accordance with Clause 39A. Clause 39A had been amended by the parties to permit the reference of disputes 'arising under, out of or in connection with' the contract without making any change to Article 5.
There was a dispute over Crosby Homes' right to retain liquidated damages and its obligation to pay a completion bonus under certain side agreements entered into during the course of the work. The adjudicator decided that the dispute arose 'out of or in connection with' the contract and resolved in favour of L Brown & Sons. Crosby Homes contended that the only right to adjudication was under the unamended Article 5 and the dispute could not be said to have arisen 'under the contract' since it arose out of completely separate side letters.
The court held that the amended wording in Clause 39A should prevail even though Article 5 had itself not been amended. Words used by way of amendment to a standard form were to be given greater weight than the printed words. To have given preference to Article 5 would have been to negate Clause 39A altogether. This reaffirmed the rule that where a printed form contains wording inserted or filled in which is inconsistent with the printed words, the inserted or filled in wording prevails (see Robertson v. French (1803)).
Apart from this, Clause 2.4.4 of the JCT form expressly provided that amendments were to prevail over all other contract documents and thus put amendments at the top of the order of precedence among the documents. Many standard forms provide for priority of documents (for example, Clause 1.5 of the FIDIC Yellow Book (2006)), but some forms, such as the new ICE (2006) Target Cost Conditions of Contract, do not give any priority. Instead, the documents forming the contract are 'to be taken as mutually explanatory of one another' and in the case of an ambiguity they are to be 'adjusted' by the engineer.
The point is the parties must ensure that so far as possible there are no ambiguities, particularly ambiguities resulting from amendments to a standard form.