Tombs v Wilson Connolly Ltd.

A party who signs a written contractual document will normally be bound by its terms. There is no general duty to identify differences between earlier terms and new terms proposed in a later written contract. The question of reasonable notice ordinarily concerns incorporation of terms where the contract is not made in writing. A document sent after formation does not vary the contract unless the parties expressly or by conduct accept it as a variation.

The claimant, a brickwork sub-contractor, sought permission to appeal from a preliminary decision of His Honour Judge Coulson QC in the Technology and Construction Court dated 9 November 2004. The issue was whether the parties had contracted on the respondent’s new short-form terms, supplied with and signed by the claimant, or on older terms printed on order forms sent later and not signed by him.

The proposed appeal argued that the respondent had been obliged to draw attention to changes between the old and new terms. The Court of Appeal considered whether that proposition had a real prospect of success and whether time should be extended for the late notice of appeal.

1. Applications refused. Permission to appeal and an extension of time for filing the appellant’s notice were refused. The proposed appeal had no real prospect of success.

2. The claimant had signed the new contract forms after receiving the accompanying new terms. His signature expressly accepted the terms and referred to clauses 28, 29, 32 and 36. The judge was entitled to conclude that those terms governed the contracts.

3. The general rule for a signed contractual document is that the signatory is normally bound by its terms. The reasonable-notice question stated in Circle Freight International Ltd v Medeast Gulf Exports Ltd, [1988] 2 Lloyd’s Rep 427, concerned incorporation of terms in circumstances where the contract was not made in writing, such as by notice, ticket or invoice. It did not impose a duty to identify changes in a written contract signed by the other party.

4. Terms supplied after formation do not vary an existing contract unless the parties expressly accept them or agree to the variation by conduct. The later order forms containing the old terms were unsigned, and there was no evidence that the claimant accepted them as a variation.

5. The proposed duty to highlight changes between old and new terms was an entirely novel proposition and was unsupported by Circle Freight or the dictum of Ackner LJ in Keeton Sons & Co v Carl Prior Ltd. If the matter had proceeded to a full appeal, the court would have extended time because of the claimant’s marital difficulties, but that question did not require determination.

• Court of Appeal (Civil Division): Permission to appeal and an extension of time were refused. [2005] EWCA Civ 432.
• High Court of Justice, Queen’s Bench Division, Technology and Construction Court: His Honour Judge Coulson QC decided on 9 November 2004 that the contracts were made on the new forms and new terms.