Civil Engineering Reference
In-Depth Information
an action against the main contractor. The main contract incorporated a modified
form of the ICE Conditions of Contract (Fifth Edition). The issue for the court was
whetherornotclause66,thearbitrationclause,formedpartofthesub-contract.
The main contractor maintained that the ICE Fifth Edition was incorporated into
the sub-contract, subject to the express qualifications made and to its adaptation for
practical effectiveness in the sub-contractual relationship. To that extent the main
contractor's submissions did not go as far as those made in
Parklea Ltd
v.
W&JR
Watson Ltd
(1988). In the latter case the court rejected the contention that the whole
provisions of the main contract were to be incorporated
mutatis mutandis
into the
sub-contract. In
Babcock Rosyth Defence Ltd
the defenders acknowledged that certain
of the main contract provisions would have no place in the sub-contract. The judge,
Lord Hamilton, stated:
When parties make reference to a set of conditions designed primarily for use
in another contract but do not expressly adapt those conditions to meet the
circumstances of their own relationship, it is often difficult to determine with
confidence the contractual effect. Where, on the one hand, the circumstances
demonstrate a plain common intention to incorporate terms, albeit expressed
in language designed primarily for another purpose, the court will, where it is
possible to do so without substantially rewriting the parties' bargain, give effect to
the parties' plain common intention by incorporating terms subject to appropriate
linguistic adaptation
Where, on the other hand, the common intention is not
plain or there are major difficulties about linguistic adaptation, the result will be
otherwise. Even in cases where incorporation subject to linguistic adaptation is
possible and appropriate, there may yet remain a question as to the extent to which
conditions are so incorporated.
…
Lord Hamilton held that the parties had plainly intended that the ICE Fifth Edition
should apply to some extent, albeit with appropriate linguistic adaptation. He was not
satisfied, however, that it was sufficiently clear that the parties intended to incorpo-
rate the arbitration clause into the sub-contract. To avoid ambiguity, therefore, parties
should make it clear which particular main contract provisions are to be incorporated
into the sub-contract and to what extent.
Similar difficulties were encountered by the pursuers in
Watson Building Services
v.
Harrison
(2001) when they unsuccessfully contended that the adjudication provisions
of the main contract had been incorporated by reference into their sub-contract with
the defenders. See also the discussion in Section 3.6.
11.9 Restrictions on sub-contracting
It is unusual, and in most cases impractical, for a main contract to contain a blanket
prohibition on sub-contracting. However, most standard forms of contract allow the
employer to retain some level of control over sub-contracting. For the position on
sub-contracting (in legal terms, 'delegation') under the common law, see Section 12.7.
