The claimant said that the software supplied to it was not fit for purpose. The defendant said that the company had relied on its own inspections of what was a standard package, and had not made known its desire to use it in a specific context. The claimant had originally pleaded reliance on the defendant’s stadard terms but now sought to amend to say that the standard terms were not incorporated.
Held: The claim succeeded.
The longer a party took after a factual position became clear to withdraw an admission, the slower the court will be to allow it. In this case the evidence for the terms not being incorporated was not strong, and it would not be an injustice to the claimants to refuse the associated amendment so shortly beore the trial.
The 1977 Act did apply, the parties were not of equal bargaining power, there was no inducement to accept the standard terms, and there was no long course of dealing such as to raise an inference that the defendant’s terms were known.
This was not bespoke software. A purchaser would come to know whether the software was adequate only after seeing the manuals, but these were not made available unil after the contract was signed.
The company varied its prices continually so as to maximise occupancy, and the practical difficulties in operating the defendant’s software limited the hotel’s ability to maximise its occupancy. Judgment accordingly.
Toulmin QC J
[2010] EWHC 965 (TCC)
Bailii
Civil Procedure Rules, Unfair Contract Terms Act 1977 3 11(1)
England and Wales
Citing:
Cited – Watford Electronics Ltd v Sanderson CFL Ltd CA 23-Feb-2001
The plaintiff had contracted to purchase software from the respondent. The system failed to perform, and the defendant sought to rely upon its exclusion and limitation of liability clauses.
Held: It is for the party claiming that a contract . .
Cited – Braybrook v The Basildon and Thurrock University NHS Trust 7-Oct-2004
Sumner J gave guidance on the withdrawal of an admission under the CPR: ‘From the cases and the CPR I draw the following principals:
1. In exercising its discretion, the court will consider all the circumstances of the case and seek to give . .
Lists of cited by and citing cases may be incomplete.
Civil Procedure Rules, Contract
Updated: 11 November 2021; Ref: scu.412291
