Beware the 'Battle of the Forms'

June 2008

The recent judgment of Mr Justice Akenhead in Cubitt Building & Interiors Ltd  v Richardson Roofing (Industrial) Ltd shows the confusion that can arise regarding when a contract is actually formed.

Cubitt was the main contractor on a mixed residential and commercial scheme.  Richardson was a specialist roofing contractor who were invited to quote for the roofing works on the project.

Various documents were exchanged by the parties and the question arose whether Cubitt's standard terms and conditions had been incorporated in the contract or the standard form of DOM/1 applied.

Contrary to what each party was arguing, the judge found that the contract had actually been formed at the pre-contract meeting when "substantial agreement on every aspect of the subcontract was reached" and recorded in the minutes of the meeting.  The judge came to this conclusion despite the fact theat Cubitt subsequently sent what it purported to be a letter of intent and referred to the entering into of a formal subcontract.

With respect to the 'Battle of the Forms', the judge concluded that although Cubitt's subsequent order referred to its own standard terms and conditions, these were never in fact provided to Richardson.  Furthermore, the reference to the DOM/1 form of contract in all other documents implied that this form of subcontract had been agreed by both parties.

Pre-contract meetings are a common occurence on most projects and depending on what documents are subsequently exchanged the minutes of such meetings could form a vital piece of evidence in ascertaining whether a contract has come into existence and what the terms of that contract might be.

This article contains information on current legal issues but is for information purposes only.  It should not be relied upon or be construed as advice or applied to any particular set of facts.  If you have a particular issue please take professional advice.