| Date | 2 May 1996 |
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| Judgment | Crittall Windows Ltd -v- T J Evers Ltd. 26 March 1996. 16 BLISS 3 |
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| The Issue | The definition of the term 'contract-documents' in JCT contracts. |
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| Implication |
Definition of contract drawings in clause 1.3 of JCT 80 not restrictive to general principles for construction of the contract. Documents not forming part of the written contract not to be relied upon. |
printIn the construction industry we sometimes make an awful mess of the procurement process. Following a tender, the settling of terms and conditions often requires many weeks, if not months, of wrangling between the parties. The final assembly of the documentation for signature including exchanges of letters, minutes of meetings, schedules of drawing revisions, and all other contract documentation seems to leave substantial scope for error. Works may well be continuing whilst all of this is happening under the basis of a letter of intent. The law reports are full of judgements where salutary lessons have been taught to contractors and employers alike as a result of their eagerness to progress construction without a contract having been put in place. Establishing what is comprised in a construction contract, in legal parlance called 'the construction of the contract', lies at the heart of many construction disputes, and judgements outlining the many principles which apply are numerous. The case of Crittall Windows Ltd -v- T J Evers Ltd is an example where difficulties of this sort brought the parties to court. Crittalls employed Evers to erect a sports and social club together with car parks and associated external works and drainage at Braintree in Essex. The various negotiations between tender enquiry and the issue of a letter of intent took nearly nine months. Signature of a contract took a further two months. Upon completion a dispute arose concerning the final contract sum. At the heart of these disputes was the age old question: What was included in the original contract sum? To be fair to the contractor it seems they had attempted to keep things tidy. They assembled the contract documents they considered were to apply, signed each, bound all together and sent these back to the employer with a covering letter clarifying the status of certain drawings and other documents, all with the footnote that the letter was also to form part of the contract documents. Nevertheless a dispute arose as to which documents applied. Evers submitted to the court that it was abundantly clear that the sending of their letter to the architect, together with the additional documents, was the combination of a substantial period of negotiations between the parties. This, however, was not sufficient for the employers, who relied upon the wording of JCT 80 to suggest that all may not be as first may seem. Firstly, they argued, the recitals to the contract were clear: the contractor will carry out the work shown on the contract drawings and described in the specifications for the contract sum. Article 1 of the contract provides that the contractor will carry out and complete the works shown upon, described by or referred to in the contract documents. It is apparent from this, said the employer, that since the price for the contract is dependant upon what is shown on the contract drawings and documents, close attention should be paid to the definition of those terms in condition 1.3. In particular the definition of contract drawings is those drawings referred to in the first recital which are signed by or on behalf of the parties to the contract. Clearly then, said the employer, drawings referred to in a side letter whether or not that letter was part of the contract, do not satisfy this definition. The court was not swayed by this type of pedantry which was described as an unrealistic assessment of the situation. It was held that it was wholly artificial to consider that the disputed documents did not form part of the contract. It is reassuring perhaps to note that the court will take a pragmatic view of what was intended by the parties rather than what might be said to be an intellectually dishonest one. As you might expect, however, the matter was not entirely concluded here. Unfortunately two drawings were included in the contract documentation, one a later revision of the other, and it became a matter of dispute as to which would properly apply. The arbitrator who had previously ruled on this had held that the later drawing must apply. Right answer, said the court, but wrong reasons. The drawings identified the plan areas of the car parks to be constructed. The later drawing showed a red line delineating a smaller car park. The arbitrator asked to look at the contractor's tender build up. He found take-off documents which showed that the contractor had priced only the smaller area of the car park, excluding what was referred to as the disputed area. The court said the arbitrator was wrong in law in paying any regard to that document in construing the contract. It was not part of the written contract, nor was it named as a contract document. It was purely an internal document of the contractor and should not have been relied upon by the arbitrator as an aid to construction of the contract. In order to construe the contract, the arbitrator should have looked at the writing as a whole in order to discover what its main purpose was. In any event, it seems, by reference to the contract documentation which included the exchange of letters between the parties leading to the award of contract, the matter could easily be resolved that the later drawing did indeed apply.
CJ-9616
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