Incorporation of standard terms and the Unfair Contract Terms Act 1977

In Commercial Management (Investments) Ltd v Mitchell Design and Construct Ltd [2016] EWHC 76 (TCC), Edwards-Stuart J held that cl 12(d) of the second defendant’s standard terms had not been incorporated into the contract between the parties. Having reviewed the evidence, he concluded that the amendment made by the second defendant to the first defendant’s terms had not been effective to incorporate cl 12(d) into the sub-contract between the parties. In any event it was held that cl 12(d) fell within the scope of s3(1) of the Unfair Contract Terms Act 1977 and that it failed to satisfy the reasonableness test.