“Podium 1 – continued –Install all distribution pipe runs on levels 1 and 2 including all rain waters and soils. Pipe works will include installing and pressure testing of all Heating & domestics & drainage pipework distribution runs in all areas area’s [sic] concerned with podium 1.”
“All orders are accepted only upon and subject to the terms set out in our quotation and the following conditions. These terms and conditions shall prevail over any terms and conditions in the buyer's order.” 364.2 The buyer responded attaching its own terms, including a tear-off acknowledgment to be signed below the statement “We accept your order on the terms and conditions stated thereon—and undertake to deliver by —Date—signed.” 364.3 The seller returned the signed acknowledgement but referred back to its quotation in the covering letter (“This being delivered in accordance with our revised quotation of May 23”). The seller argued that this was sufficient to incorporate its terms and conditions and was the so-called “last shot”. 364.4 The Court of Appeal held that the contract was concluded on the buyer’s terms upon the seller returning the signed acknowledgement. The buyer’s response was a counteroffer which was accepted by the seller signing the acknowledgement. Lawton LJ explained that the reference in the covering letter to the seller’s prior quotation did “not bring into the contract the small print conditions on the back of the quotation.” 365. Applied to this case, by confirming its agreement and/or providing a consent order A&V confirmed its agreement to JBH’s offer. No part of that offer included a term that A&V was still entitled to pursue JBH for proceedings relating to Mr Blizzard’s fees. 366. Alternatively, if the Court decides there was no binding agreement in respect of the Mr Blizzard’s fees. That must mean there was no binding agreement at all. JBH would remain entitled to its costs of the discontinued enforcement proceedings. PerCPR 38.6 : “Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant against whom the claimant discontinues incurred on or before the date on which notice of discontinuance was served on the defendant.”
“13-41 … it will be assumed against the claimant that the defendant would not have ‘voluntarily subjected himself to an additional contractual obligation in favour of the Plaintiff’. 13-42 Similarly a claimant cannot usually claim for the change that the defendant would have chosen to extend the claimant’s employment, or other contract profitable to the claimant, beyond the contractual period. … 13-44 The modern English approach is to apply the balance of probabilities approach to what would have happened between the claimant and defendant.”