Conclusions and implications This decision will have significant ramifications for the interpretation of construction contracts, which routinely incorporate schedules and technical documentation often with less than complete harmonisation as to intended legal standards of design and workmanship. The Supreme Court agreed with the Court of Appeal’s characterisation of the contract in this case as being comprised of documents of “multiple authorship”, which contained “much loose wording”. Despite this, it found no reason not to give effect to the natural meaning of the two TR Paragraphs, imposing a more onerous fitness for purpose type obligation in addition to MTH’s other obligations to exercise reasonable skill and care and to follow the J101 standard. The decision may be seen as a further example of a return in emphasis to the literal meaning of contract provisions observed by many commentators since the Supreme Court's earlier decision in Arnold v Britton. Although no overall change in the approach to interpretation has occurred, arguments which depend upon a reading down of particular parts of a contract because of their commercial implications or because they are less prominent than might be expected will face an uphill battle. More than ever, parties will be taken to mean what they say in their contracts. In light of this decision, parties should consider making clear in their general contract conditions whether and how technical schedules are to affect overall obligations as to design and workmanship. Contractors may wish, for example, to include paramountcy provisions which state that nothing in any of the schedules to the contract is to impose a design obligation of a greater standard than reasonable skill and care. Employers wishing to impose fitness for purpose type obligations in combination with obligations to adhere to certain standards or designs should make clear that those standards or designs represent minimum obligations as found by the court in this case. References MT Hojgaard A/S v E.ON Climate and Renewables UK Robin Rigg East Limited [2014] EWHC 1088 (TCC) MT Hojgaard A/S v E.ON Climate and Renewables UK Robin Rigg East Limited [2015] EWCA Civ 407 MT Hojgaard A/S v E.ON Climate and Renewables UK Robin Rigg East Limited [2017] UKSC 59
THE AUTHORS
Adrian Bell Partner London
Steven Williams Partner London
Victoria Peckett Partner London
David Parton Partner London
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