EWJ June 61 2025 web - Flipbook - Page 118
C&C argued that the tender submissions clarifications
was a contract document and the position recorded in
the tender submissions clarification was agreed, did
not change and was consistent with the terms of clause
2.42. C&C also provided evidence of the pre-contractual negotiations to support its position that it was
agreed that Sisk was to take the risk of the existing
structures.
What did the court decide?
The court decided that on a proper interpretation of
the contract, the risk in the unsuitability of the existing
structures rested solely with C&C, as the employer.
Reasons for the court’s decision included the
following:
l The contract was clear that clause 2.42, while
expressly making Sisk liable for risk in the existing
buildings, was subject to item 2 of the clarifications
document. The clarifications document stated that the
"existing structures risk" was an "Employer Risk".
l In the absence of contractual definitions, "Employer
Risk" and "existing structures risk" were to have their
ordinary meanings, and in particular, the court found
that the inclusion of the words "Employer Risk" in the
relevant answer to the clarification query from Sisk
meant that C&C was expressly agreeing to take the
risk associated with the suitability of the existing
structures.
l The pre-contract negotiations were inadmissible
and did not fall within any exception to the rule
against admitting such evidence. The court also noted
that the contract included an "entire agreement"
clause.
In short, parties should make sure that the final
contract accurately reflects what has been agreed, not
just in the terms and conditions, but across all contract
documents. And don’t be tempted to append other
ancillary documents "just in case"…
l The tender submissions clarifications document was
a valid contract document. But it only recorded that
specific agreement had been reached in relation to
insurance (which was consistent with the rest of the
contract). It did not record that Sisk had accepted the
existing structures risk.
Author
Claire Kilpatrick
Managing Associate
+44 (0)1483 406442
www.stevens-bolton.com
Key takeaways
This case is a stark reminder to parties to check that
they are happy with all of the contract documents, not
just the legal terms and conditions. It is also a warning
to resist the temptation to append to the contract all
documents and correspondence that may have passed
between the parties, particularly at an early stage of
the negotiations.
Our next issue will be
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l Parties should check for any inconsistencies between
contract documents, including between the contract
terms and any other technical or commercial documents to be appended to the contract.
l Be wary of including tender submission documents
or minutes of meetings as part of the contract documents, particularly where contract negotiations have
continued after that date.
If you wish to contribute
please email us
l Pre-contract negotiations are unlikely to be
admissible in interpreting the contract and/or as evidence of the parties’ intentions, except in very limited
circumstances.
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