BuildLaw BuildLaw: Issue 23, March 2016 | Page 17

consequence of his pursuing any such right or remedy; (c) excluding or restricting rules of evidence or procedure; and (to that extent) sections 2 and 5 to 7 also prevent excluding or restricting liability by reference to terms and notices which exclude or restrict the relevant obligation or duty."

It is not necessary, for the Act to bite, for the whole of the contract terms to be standard.1 Further, in the case of Yuanda (UK) Co. Ltd v WW Gear Construction Ltd,2 Mr Justice Edwards-Stuart said that to be standard, the terms have to be terms which the company uses for all (or nearly all) of its contracts of a particular type without alteration. The terms in question were not standard here because while Gear had offered the same terms to all of the trade contractors, few, if any, had contracted on the same terms.

Exclusion and limitation clauses

As well as needing to be clear and consise, exclusion clauses are subject to the "reasonable" test imposed by the Unfair Contract Terms Act 1977 ("UCTA").3 UCTA also imposes a blanket ban on certain types of exclusion clauses – you cannot exclude liability for personal injury or death,4 and any attempt to exclude liability for one's own fraud will always be unreasonable.

Subject to those constraints, and excluding legislation particular to "consumers" only, the general approach of English law is to allow the parties to decide for themselves what the terms of their contract are to be. If the parties agree that the liability of one (or both) should be limited in a specific way then the courts tend not to interfere. As a result construction law cases which involve consideration of whether contract terms are "unfair", in the context of UCTA, are relatively rare.

Recent case law

Saint Gobain Building Distribution Ltd (T/A International Decorative Surfaces) v Hillmead Joinery (Swindon) Ltd.5

Here the court considered the question of whether the express exclusion by a party's standard terms and conditions of contract of the otherwise implied term of "satisfactory quality" of goods supplied, and its attempt to limit its liability to the value of the goods concerned, was reasonable. The case also serves to show that the particular circumstances of each case will affect the conclusion a court will come to in deciding if contract terms are "unfair".

Saint Gobain (trading as International Decorative Surfaces ("IDS") supplied laminate sheets to Hillmead who bonded these sheets to MDF to make bonded panels which they then supplied to a shopfitter. The shopfitter used them in fitting out a number of Primark stores. There were alleged to be problems with the goods.