What if the main body of a contract appears to say one thing, but the detailed wording of a technical schedule appears to be at odds with that? You might have thought that the main body of the contract would take precedence – but a recent Supreme Court ruling suggests otherwise. And in terms of how to respond, the case is likely to create difficulties for both suppliers and customers.
MT Hojgaard v E.ON Climate & Renewables (2017) concerned a dispute over the failure of offshore wind turbines installed by MT Hojgaard. The purchaser, E.ON, argued that the foundations of the turbines were effectively subject to a 20 year warranty set out in paragraph 18.104.22.168 (ii) of the Technical Requirements of the project (which formed part of the agreement).
MT Hojgaard responded that it had constructed the foundations in accordance with the relevant international technical standard, known as J101 – but that this standard (which had been developed by a third party) turned out to be flawed. It maintained that, looking at the agreement as a whole – and in particular the main body of the contract - it should only be held to be in breach if it had negligently failed to implement J1o1 correctly (which was not the case here). The Court of Appeal agreed with MT Hojgaard, finding that the wording relied upon by E.ON was "too slender a thread upon which to hang a finding that [MT Hojgaard] gave a warranty of 20 years life for the foundations."
Supreme Court ruling
The Supreme Court, however, disagreed with the Court of Appeal and found in favour of E.ON, ruling that the wording in the Technical Requirements was sufficient to impose an obligation on MT Hojgaard to ensure that the foundations lasted 20 years. At first sight, this might seem somewhat harsh, given that MT Hojgaard was not to blame for the errors in J101. However, the Supreme Court noted that, as a general rule, "even if the customer… has specified or approved the design, it is the contractor who can be expected to take the risk" of the design itself being at fault.
MT Hojgaard argued that if the parties had intended there to be an obligation as onerous as a 20 year warranty, it would not have been "tucked away" in a technical document, but would instead have been clearly set out in the main body of the contract. The Supreme Court simply observed that the Technical Requirements document was clearly stated to have contractual effect – and that it could see no reason to depart from this.