NEC Case Law, Clause by Clause · Module 1 · Lesson 2 of 4
Reading the words
Why it matters
Must the grass be sown before the embankment is ready for planting?
Dana Whitfield is the Project Manager. A court's reading decides who pays.
Merrow Vale reads it
Planting comes later.
Suppose Dana reads it
The Condition needs grass seed sown too.
Source: ECC 25.3. Aldermere Contract Data.
The rule
Words keep their natural meaning, even when the result looks harsh later
Not an NEC case, but ECC time bars are read this way.
The tenants wanted a fair share of costs. Did the Supreme Court agree?
Arnold v Britton (2015)
Source: Arnold v Britton (2015). ECC 61.3, 61.4, 62.6.
The rule
A standard form leans on its text, and a hurried Scope on context
Capita's indemnity needed a customer claim or complaint. None came, so no cover.
Northern Ireland Housing Executive v Dixons (2019) applied Wood to NEC3 documents (Module 4).
Source: Wood v Capita (2017). ECC 11.2(16).
The rule
Unclear words are rarely read against their writer, so use the ECC's rules
The Court of Appeal gave contra proferentem a very limited role between commercial equals.
Arup's asbestos exclusion was read to cover a negligent failure to find it.
“The Project Manager states how the ambiguity or inconsistency should be resolved” (17.1)
| How the ECC settles it | |
|---|---|
| The Scope63.10 | A change to resolve it is priced on the reading best for the Party that did not provide it |
| The Site Information60.3 | For a clash in the Site Information, Merrow Vale is assumed to have allowed for the easier conditions |
| Everything else17.1 | 17.1 settles the reading, and the general law decides the rest |
Source: Persimmon v Ove Arup (2017). ECC 17.1, 60.3, 63.10.
See it on the project
Read naturally, ready for planting leaves the sowing for later
Had Dana been right about the Key Date Condition, Merrow Vale would pay the extra cost on other work on the project (25.3).
- 125 SepCondition metMerrow Vale The Mill Lane embankment is finished and ready for planting.
- 230 SepWhat ifDana What if: Dana decides the Condition also needs sown grass. Read naturally, ready for planting means planting comes later.
…
Source: ECC 25.3. Arnold v Britton (2015). Wood v Capita (2017).
Quick check · Try it
Two questions on what you have just covered
Pick an answer to see why.
2 questions to answer
Source: ECC 60.3, 62.3. Arnold v Britton (2015).
Try it
Sort each argument to the case that answers it
Five arguments you could hear on a real job. Each answer says why.
…
Arnold v Britton
- Aldermere Water calls a deemed acceptance after a missed reply by Dana too harsh to apply.
- Merrow Vale's lawyer says Arnold is no help, because it was about holiday chalets.
Wood v Capita
- A hurried Scope line says the Mill Lane verge is left as found. Both sides walked it before tender.
Persimmon v Ove Arup
- Leila Moss, Merrow Vale's commercial manager, hopes an unclear Contract Data entry that Aldermere Water wrote will be read against it.
- Leila says a doubtful exclusion that Aldermere Water drafted must be read against it.
Source: ECC 17.1, 61.4, 62.6, 63.10. Arnold (2015). Wood (2017). Persimmon (2017).
Recap
Start from the words, then the context, then the ECC's own tie-breakers
Habits that keep you out of arguments these cases settled.
On Monday at work
- Plan to meet each time bar (61.3) as written.
- Read a hurried Scope line with the facts both sides knew.
- Notify an unclear entry under 17.1, not hope it goes your way.
In the Toolkit: NEC4 ECC Notice Letters (zip) Members
Independent course material. It is not published or endorsed by NEC, and it is not legal advice. Clause references are to the NEC4 Engineering and Construction Contract, June 2017 with amendments January 2023. Cases decided under an earlier edition are matched to the NEC4 clause that does the same job. The worked examples and their people are invented. Short quotes from NEC4 (© NEC 2017) and the FIDIC Red Book (© FIDIC 2017) are used for review and comment. Read the full clauses in your own copy of the contract.
Source: ECC 17.1, 61.3, 63.10.
Go deeper (optional)
Notify an ambiguity at once
Copy it, then fill the gaps.
To: Dana Whitfield, Project Manager
Date: [date]
We notify an ambiguity or inconsistency (17.1).
Where: [entry]
It reads as [one] or [another].
Please state how to resolve it.
[name], Merrow Vale
In the Toolkit: Letter 07, ECC Notice Letters
Source: ECC 17.1, 63.10.
Go deeper (optional)
Earlier cases set the frame, and one point is open
Optional points for later.
Do the tender talks help a court read the contract?
ICS (1997)
An entry reads two ways. Which reading may a court prefer?
Rainy Sky (2011)
Is a Z clause read against the Client that wrote it?
Open question
Source: Investors Compensation Scheme (1997). Rainy Sky (2011).