Student ID Number 150578905

Student ID Number: 150578905
Supervisor: David Brynmor Thomas (39 Essex Chambers, London)
‘ROBIN RIGG’ UNDER REVIEW:
A STUDY CONCERNING THE OBLIGATIONS OF ‘REASONABLE SKILL AND
CARE’ AND ‘FITNESS FOR PURPOSE’
Final word count: 14231

2
CONTENTS
Abstract p. 4
1 Introduction p. 5
2 Double obligations in construction contracts p. 8
2.1. Design Liability p. 8
2.2. Reasonable skill and care p. 8
2.3. Fitness for purpose p. 9
2.3.1. Implied Suitability – Statute p. 10
2.3.2. Implied Suitability – Common Law p. 11
2.3.3. Express Suitability p. 13
2.4. Codes of Practice p. 14
2.5. Novel Design p. 15
3 Canada and the US p. 17
3.1. ‘Conflicting’ Obligations p. 17
3.2. The Canadian Standard p. 18
3.2.1. Little v North Columbia Construction Ltd p. 18
3.2.2. Greater Vancouver Water District v p. 19
North American Pipe & Steel Ltd
3.2.3. Steel Co. of Canada v Willand Management Ltd p. 22
3.3. The US Spearin Doctrine p. 24
3.4. Discussion; literal vs contextual approach p. 27

3
4 The English perspective p. 30
4.1. Contractual Interpretation: an iterative process p. 30
4.2. Boundaries of Interpretation p. 34
4.3. Robin Rigg under review p. 36
4.3.1. The reasoning of the High Court p. 36
4.3.2. The reasoning of the Court of Appeal p. 40
4.4. Discussion p. 43
5 Conclusion p. 47
Bibliography p. 49
Tables of Statutes and Cases p. 52
Appendices

4
ABSTRACT
This dissertation focuses on two frequently occurring, and related, legal issues with regard to
design liability of contractors. The first is the presence of double obligations (‘reasonable skill
and care’ and ‘fitness for purpose’) in construction contracts. The second is the way in which
the courts use principles of contractual interpretation to establish the precise extent of the
duties imposed on contractors. Based on a comparative analysis of Canadian, US and English
case law, while zooming in on the Robin Rigg1
case, it is argued that the mutual compatibility
of double obligations is negatively affected by the courts’ inconsequent behaviour towards
choosing either a literal or a contextual approach.
1
MT Højgaard A/S v E.ON Climate and Renewables UK Robin Rigg East Ltd, E.ON Climate and Renewables
UK Robin Rigg West Ltd [2014] EWHC 1088 (TCC), [2014] BLR 450; [2015] EWCA Civ 407, [2015] BLR 431
(Robin Rigg case).

5
1. Introduction
As the world is experiencing the effects of climate change on an ever increasing scale, and
the United Nations’ Secretary General (Ban Ki-moon) has hailed the Paris climate accord
as “health insurance policy for the planet”,2
it is not surprising that there has been a surge
of newly developed offshore wind farms in the North and Baltic Seas. The statistics show
a further 546 wind turbines being connected to the grid in 2015, while 2014 saw 246 wind
turbines connected.3
It is reasonable, therefore, to conclude that wind energy is a rapidly
evolving and popular industry.
In the early 2000s, however, the knowledge of wind turbine construction was less certain
and perhaps even slightly experimental. It seems fair to say that there were no absolute
views on how to connect the bottom of the turbine tower to the top of the monopile. Some
offshore wind farms, such as Robin Rigg in the Solway Firth, had a transition piece fitted
over the top of the monopile, with the gap between the transition piece and the pile filled
with grout, and the tower fitted onto the transition piece. An illustration of this type of
construction has been attached as Appendix I. In contrast, some other wind farms were
built with so-called shear keys in the grouted connections.4
The installation of the foundations at Robin Rigg began in December 2007 and was
finalised in February 2009. Shortly after completion, another offshore wind farm at
Egmond aan Zee (Netherlands) was experiencing serious problems, as the transition
pieces started to slip down the monopiles. As with Robin Rigg, the turbines were built
without shear keys and according to the same international standard DNV-OS-J101
(‘J101’). A flaw was subsequently discovered in the international standard. As a result, the
grouted connections at Robin Rigg started to fail in April 2010. Remedial works had to be
carried out to a tune of €26.25 million.5
2
United Nations, ‘UN Climate Change Conference Paris 2015’, (United Nations, 21 July 2016, 3)
<http://www.un.org/sustainabledevelopment/cop21/> accessed 21 July 2016.
3
Tanja Peschel, ‘Monitoring Offshore Wind Farms in the North Sea’, (Sun & Wind Energy, 31 March 2016, 1)
<http://www.sunwindenergy.com/wind-energy/monitoring-offshore-wind-farms-north-sea> accessed 21 July
2016.
4
Robin Rigg case (n 1); [2015] EWCA Civ 407, [8] – [13].
5
ibid [46] – [54].

6
While the Robin Rigg case ultimately centres on the question of who should bear the cost
of the remedial works, the employer (E.ON) or the contractor (MT Højgaard (‘MTH’)),
the legal significance of the case is much more profound. The courts, firstly, are dealing
with a construction contract possibly containing double obligations of ‘reasonable skill
and care’ and ‘fitness for purpose’ in relation to design liability. The legal question,
therefore, has to be answered of whether, in fact, such double obligations exist. And
second, the courts have to identify the precise extent of the duties imposed upon MTH by
applying established principles of contractual interpretation.
This dissertation will review Robin Rigg by analysing the reasoning of both the UK’s
High Court and the Court of Appeal. But before zooming in on the Robin Rigg case, this
dissertation will zoom out and discuss the occurrence of double obligations in
construction contracts as well as the treatment of such double obligations in Canadian, US
and English case law.
In view of the above, this dissertation aims to examine the correlation between double
obligations in construction contracts and the effects of contractual interpretation.
Accordingly, this dissertation seeks to uncover a pattern in the case law on the basis of
which it can be argued that the mutual compatibility of double obligations is negatively
affected by the courts’ inconsequent behaviour towards choosing either a literal or a
contextual approach.
Since the Supreme Court has listed the Robin Rigg case for hearing on the 20th
of June
2017,6
this dissertation intends to contribute to the literature on these issues. Perhaps it
might even influence the Justices to take a unified stance as to what extent the literal
approach should be followed.
This dissertation proceeds with a second chapter describing the different kinds of design
duties as well as the legal status of codes of practice. In the third chapter, Canadian and
US case law that addresses the contractual interpretation of express and implied suitability
obligations and on discovering a ‘general rule’ will be examined. Chapter four will focus
6
This information was received from Robert Greenberg, Chief Case Manager at the Supreme Court of the
United Kingdom.

7
on the English principles of contractual interpretation and the current state of affairs in
that respect. It will then proceed with a critical analysis of the Robin Rigg case. Finally,
the fifth chapter will reiterate the main arguments generated by this research.

8
2. Double obligations in construction contracts
2.1. Design Liability
Depending on the chosen procurement route contractors will either be commencing
their work on the basis of a ‘traditional’ construction contract, where the design is
handled by professional consultants and the construction by contractors, or on the
basis of a ‘design and build’ or ‘turnkey’ construction contract, where contractors
take on the responsibility for all or part of the design (as well as for construction).
More than ever before contractors seem to be obliged to give guarantees concerning
design or suitability, making it crucial for contractors to consider the level of their
design liability from the early beginnings.7
When it comes to identifying the contractors’ design duty, a distinction is usually
made between the obligation to use ‘reasonable skill and care’ opposed to the strict
duty to accomplish a certain outcome. The latter is commonly addressed as a ‘fit for
purpose’ obligation.8
2.2. Reasonable skill and care
In Keating On Construction Contracts,9
the authors address the fact that:
[T]he contractor must do the work with all proper skill and care. It is suggested
that this is a continuing duty during construction and not only upon
completion. In deciding what degree of skill is required the court will, it is
submitted, consider all the circumstances of the contract including the degree
of skill expressly or impliedly professed by the contractor.10
7
Sarah Buckingham, ‘Understanding your design duty – “reasonable skill and care” vs. “fitness for purpose” –
mutually incompatible or comfortably coexistent?’, (Fenwick Elliot Annual Review, 11 November 2014, 1)
<http://www.fenwickelliott.com/research-insight/annual-review/2014/understanding-design-duty> accessed 14
June 2016.
8
Sarah Lupton, ‘Design Liability: Problems with defining extent and level’, (2016) ICLR 96, 102.
9
(9th edn, Sweet & Maxwell 2012).
10
ibid [3-050].

9
Subsequently, Section 13 of the Supply of Goods and Services Act 1982 (SGSA 1982)
provides that a professional, who is supplying a service while acting in the course of a
business, is under an implied statutory duty to perform his service with reasonable
skill and care. Should the professional not perform accordingly, this could lead to
‘negligence’ on his part.
To establish whether a ‘professional man’ meets the reasonable skill and care
threshold, his work has to comply with the common law test as set out in Bolam v
Friern Hospital Management Committee.11
In Bolam, McNair J said that “a man need
not possess the highest expert skill (…) it is sufficient if he exercised the ordinary skill
of an ordinary competent man exercising that particular art.”12
Bingham LJ gave
further guidance as to the level of knowledge and skill in the Court of Appeal case of
Eckersley & Others v Binnie & Partners & Others13
:14
He must bring to any professional task he undertakes no less expertise,
skill and care than any other ordinarily competent members of profession
would bring, but need bring no more. The standard is that of
the reasonable average. The law does not require of a professional man
that he be a paragon, combining the qualities of polymath and prophet.15
As such the employer will have to prove negligence by addressing the fact that the
works or design executed by the contractor or designer do not match the level of a
competent professional. Due to its subjective nature these matters often require
determination on the basis of expert evidence.16
2.3. Fitness for purpose
While the criterion of the ordinary, competent professional is the general default
position, parties are free to opt for a higher standard regarding the execution of the
11
[1957] 1 WLR 582 (QB).
12
ibid 586.
13
[1988] 18 Con LR 1 (CA).
14
Tony Marshall, ‘Design liability in English law’, (2011) 6 Const L Int’l 15, 16 - 17.
15
Eckersley (n 13) 25.
16
Ben Smith, ‘Legal terms explained’, (2012) 23 1 Cons. Law 5.

10
contractor’s or designer’s duties.17
By agreeing to such a higher suitability obligation
the contractor or designer warrants that the works or design will be fit for its intended
purpose. Under these circumstances liability is strict and does not require any form of
negligence from the side of the contractor or designer; liability occurs when the
works or design do not satisfy the given specifications.18
It is generally noteworthy at this stage that strict liability is considered to be a
difficult concept from an insurance point of view. Most professional indemnity
policies will not cover breaches of any type of suitability obligation. Therefore, the
presence of fitness for purpose obligations in contracts might leave the contractor or
designer without an insured defence to suitability claims or, even worse, might make
the policy itself null and void.19
The incorporation of suitability obligations into construction contracts is possible by
implied terms (statute or common law) and/or express terms, as further explained in
the sections below.
2.3.1. Implied Suitability – Statute
Generally two statutory meanings of fitness for purpose can be distinguished. On
the one hand fitness for purpose deals with goods being of a satisfactory
quality20
, while at the same time it deals with the suitability of materials and
work21
for the known purpose of the employer. The introduction of the Sale and
Supply of Goods Act 1994 (SSGA 1994) has made this distinction even more
profound.22
17
Marshall, ‘Design liability in English law’ (n 14) 17.
18
Lisa Kingston, ‘Where are we on fitness for purpose under NEC3?’, (Fenwick Elliott Insight, Issue 56
Februari 2016, 1) <http://www.fenwickelliott.com> accessed 2 July 2016.
19
Kingston, ‘Where are we on fitness for purpose under NEC3?’ (n 18) 1.
20
S. 14(2B) Sale of Goods Act 1979, and the equivalent amendments to the provision in s. 4 of the Supply of
Goods and Services Act 1982.
21
S. 14(3) Sale of Goods Act 1979, s. 4(4), 4(5) and 4(6) Supply of Goods and Services Act 1982.
22
Atkin Chambers, Nicholas Dennys and Robert Clay (eds), Hudson’s Building and Engineering Contracts,
(13th
edn, Sweet & Maxwell 2015), [3-085].

11
Unlike the professional consultant’s duty to handle the design with reasonable
skill and care (on the basis of the SGSA 1982 as mentioned in section 2.2. of this
dissertation), the contractor’s duty is to supply goods (i.e. completed works).
Based on the SSGA 1994, the goods and materials supplied by the contractor
should always be of satisfactory quality. But where the employer, expressly or by
implication, makes known to the contractor any particular purpose for which the
goods are being bought, the goods should be reasonably fit for that purpose.23
This statutory position has been acknowledged by the House of Lords in the
Young & Marten24
case, which followed the statement of du Parcq LJ in G.H.
Myers & Co v Brent Cross Service Co25
:26
A person contracting to do work and supply materials warrants that the
materials which he uses will be of good quality and reasonably fit for
purpose for which he is using them, unless the circumstances of the
contract are such as to exclude any such warranty.27
Thus, in situations where there is adequate reliance on the contractor, suitability
of work and materials will be implied into a construction contract. Most
importantly, reliance on the part of the employer should be to the actual or
constructive knowledge of the contractor and it should not be based upon their
own or their agent’s expertise.28
2.3.2. Implied Suitability – Common Law
At common law there is a general recognition of the potential implication of
terms of fitness where construction works or design are supplied. This can be
derived from the following passage in Hudson’s Building and Engineering
23
Kingston, ‘Where are we on fitness for purpose under NEC3?’ (n 18) 1.
24
[1969] 1 AC 454 (HL).
25
[1934] 1 KB 46 (KB).
26
Atkin Chambers, Nicholas Dennys and Robert Clay (eds) (n 22) [3-086].
27
G.H. Myers (n 25) 55.
28

12
Contracts:
In all construction contracts, whatever the descriptive terminology, it is
now clear that in the absence of express provision, where an Employer
can be seen to rely on the Contractor for design the latter’s
responsibility in law will be to produce a final work which, independent
of any question of fault on their own part, will be suitable for its
required purpose.29
Lord Denning MR gave a relevant obiter dictum in this respect in Greaves & Co
(Contractors) Ltd v Baynham Meikle & Partners30
:31
Now, as between the building owners and the contractor, it is plain that
the owners made known to the contractors the purpose for which the
building was required so as to show that they relied on the contractor’s
skill and judgement. It was, therefore, the duty of the contractors to see
that the finished work was reasonably fit for the purpose for which they
knew it was required. It was not merely an obligation to use reasonable
care. The contractors were obliged to ensure that the finished work was
reasonably fit for the purpose (…)32
Furthermore, the House of Lords considered the suitability of a complete
structure in Independent Broadcasting Authority v EMI Electronics Ltd and
BICC Construction Ltd.33
Lord Scarman stated that:
In the absence of any term (express or to be implied) negativing the
obligation, one who contracts to design an article for a purpose made
known to him undertakes that the design is reasonably fit for purpose.
Such a design obligation is consistent with the statutory law regulating
the sale of goods.34
Reliance of the employer upon the contractor’s design expertise is critical in
assuming fitness for purpose. Whenever the employer executes the
design himself, lays down detailed requirements of the design, or deals
29
ibid [3-099].
30
[1975] 1 WLR 1095 (CA).
31
Sarah Lupton, ‘Liability for design of a system: Trebor Bassett v ADT Fire’, (2014) ICLR 322, 327.
32
Greaves (n 30) 1098.
33
[1980] 14 BLR 1 (HL) (IBA case).
34
ibid [10-37].

13
with the contractor’s design in any other way, the suitability obligation as to
the design will fall away.35
2.3.3. Express Suitability
As mentioned briefly in section 2.1. of this dissertation, all design and build
contracts involve the responsibility for all or part of the design (as well as for
construction). Therefore, it is a common feature that contractors enter into
contracts containing express suitability obligations.36
These express
undertakings will usually override the normal default, as stated in Hudson’s
Building and Engineering Contracts, with contractors taking on controllable as
well as uncontrollable risks:37
So a contractor will sometimes expressly undertake to carry out work
which will perform a certain duty or function, in conformity with plans
and specifications, and it turns out that the works constructed in
accordance with the plans and specifications will not perform that duty
or function. It would appear that generally the express obligation to
construct a work capable of carrying out the duty in question overrides
the obligation to comply with the plans and specifications, and the
contractor will be liable for the failure of the work notwithstanding that
it is carried out in accordance with the plans and specifications. Nor
will he be entitled to extra payment for amending the work so that it
will perform the stipulated duty. Such undertakings will, however, be
construed in cases of doubt in the light of the degree of reliance being
placed in the contractor’s skill and judgment, as in the case of the
implied obligation.38
35
36
‘Evidence can be seen in the guise of standard form construction contracts for plant and engineering works,
for example FIDIC Red Book clause 4.1 requires the contractor to “design (to the extent specified in the
Contract), execute and complete the Works in accordance with the Contract”, which is generally understood to
be a strict obligation. Those of the Institute of Chemical Engineers (I Chem E), of the Institute of Electrical
Engineers, contain similar provisions. GC/Works contains optional strict liability provisions; the NEC is drafted
on the assumption that the default liability would be strict (…)’, Lupton, ‘Liability for design of a system’ (n 31)
332.
37
ibid 332.
38

14
Absolute obligations (demanding execution of the works to a certain level) often
co-exist together with the common law standard of reasonable skill and care by
which professionals should perform their services. Due to the fact that
construction contracts contain many different kinds of documents (often by
different author’s), problems occur in identifying whether or not an absolute
duty exists. These difficulties arise especially where it is obvious from the
contract that suitability of the contractor’s design is desired with reference to
international or industry standards.39
2.4. Codes of Practice
International or industry standards are not mandatory in law.40
Therefore, establishing
liability based on the sole fact of failing to comply with an international or industry
standard is doubtful. But it could work as an incentive to convince the courts of
negligence, which can be derived from the New Zealand case Bevan Investments Ltd
v Blackhall and Struthers (no. 2)41
:42
Bearing in mind the function of codes, a design which departs substantially
from them is prima facie a faulty design, unless it can be demonstrated that it
conforms to accepted engineering practice by rational analysis.43
On the other hand, designers should not deceive themselves by rigidly holding on to
international or industry standards as can be concluded from Holland Hannen and
Cubitts (Northern) Ltd v Welsh Health Technical Services Organisation.44
In Holland
Hannen, Goff LJ said that “it is plain from the evidence that the code of practice is no
more than a guide for use by professional men, who have to exercise their own
39
ibid [3-095].
40
David Philip, ‘How Long is a Life Cycle (London)’ (CEE SIG Seminar, Lloyd’s Old Library, 3 June 2015)
<http://www.cila.co.uk> accessed 2 July 2016.
41
[1979] 11 BLR 78; [1978] 2 NZLR 97 (CA).
42
Anthony Speaight and Gregory Stone, Architect’s Legal Handbook (8th edn, Architectural Press (Elsevier)
2004), 369 – 370.
43
Bevan (n 41) 65 – 66.
44
[1985] 35 BLR 1 (CA).

15
expertise.”45
Since codes of practice correspond with the design process itself, they must be
handled with due skill and care.46
In that respect designers should, while executing
the service, constantly monitor whether their design meets the relevant professional
levels and customs (‘state of the art’ defence). Or a designer should possibly seek
reliance on a particular body of professional opinion underlining the course of action
taken by the designer (‘respectable body of opinion’ defence).47
2.5. Novel Design48
Most notably, ‘state of the art’ discussions arise where designers deal with novel
designs. For example, in the IBA49
case the claimant (IBA) had contracted with EMI
to design and build three cylindrical aerial masts. BICC, being the nominated
subcontractor, had executed the design for the masts. When the first of the three
masts failed (in March 1969), IBA started proceedings against EMI for breach of
contract and negligence. BICC was similarly sued for negligence, breach of warranty
and negligent misstatement. Parties acknowledged that the mast was “both at and
beyond the frontier of professional knowledge at that time.”50
However, the House of
Lords took the view that having no precedent for the design of a tall mast cannot
pardon the designer for its failure. Designers should think of extra safety measures
when dealing with a novel design.51
Innovative design requiring designers to take special precautions has been
acknowledged in Try Build Ltd v Invicta Leisure Tennis Ltd,52
in which case the
45
ibid 10.
46
Philip, ‘How Long is a Life Cycle (London)’ (n 40).
47
48
Sarah Lupton, Cornes and Lupton’s Design Liability in the Construction Industry (5th edn, Wiley Blackwell
2013) [8.4.2].
49
IBA case (n 33).
50
ibid [10-12].
51
Nicholas Gould, ‘Design and Build Contracts and Liability’, (Seminar, King’s College London, 9 July 2012)
<http://www.fenwickelliott.com> accessed 2 July 2016.
52
[1997] 71 Con LR 140 (QB).

16
novelty of the roof design made the court decide that the engineers should have given
specifications regarding the foil thickness and also the ‘water-tightness’ of the roof.
In addition, the court decided that appropriate tests were necessary.53
It is argued at this point that the design carried out by MTH’s designer, Rambøll
Danmark A/S, in the Robin Rigg case was indeed a novel design. The design was
developed between mid-2006 and mid-2007, on the basis of the J101 international
standard as published by DNV in June 2004. Although the technique itself, using
grouted connections to join tubular steel structural members, had been available since
the 1970s, the application of the technique in offshore wind turbines was a new and
recent development at the time. The first offshore wind farm with grouted
connections only appeared in 2002 off the coast of Denmark.54
Furthermore, it becomes clear from the factual matrix that the fundamental problems
with J101 and the grouted connections were discovered around September 2009, after
turbines constructed in accordance with J101 had been shifting on their foundations.55
As indicated by Diamond, “measures are being taken to address this matter, although
their effectiveness remains to be seen (…) The lack of a historical track record and
the uncertain effectiveness of these technological design advances may be a risk that
wind farm investors and developers may be willing to, or may need, to take.”56
By
her choice of words Diamond is clearly regarding J101 as a design standard without
any precedent.
The following chapters will focus on the treatment of double obligations in Canadian,
US and English case law.
53
ibid [77] and [88].
54
Robin Rigg case (n 1); [2014] EWHC 1088 (TCC), [4], [5], [10].
55
ibid [37].
56
Kimberly E. Diamond, ‘Extreme Weather Impacts on Offshore Wind Turbines: Lessons Learned’, (2012)
NR&E 37, 38.

17
3. Canada and the US
3.1. ‘Conflicting’ Obligations
As observed in the previous chapter, the modern design and build contractor plays a
dual role in the execution of the works. Establishing the level of his liability has
become quite a task with respect to the two separate elements of design and
construction. These contractors appear to be under conflicting obligations, although it
was confirmed by the Court of Appeal in the IBA case that “we see no reason (…) for
not importing an obligation as to reasonable fitness for purpose into these contracts or
for importing a different obligation in relation to design from the obligation which
plainly exists in relation to materials.”57
As a general guideline it seems wise for design and build contractors to assume an
implied suitability obligation when executing design work, with the apparent
exception of design of a system58
(which the court refused to treat equally to that of a
component or structure). But at the same time it appears questionable that design by a
professional consultant attracts a different level of responsibility than design by a
contractor. Even though it is true that, in comparison, design and build contractors are
more accustomed to delivering a finished product instead of merely providing a
service.59
Interestingly, the tension between ‘reasonable skill and care’ and ‘fitness for purpose’
appears to be the most profound when express contract terms are used extensively
throughout the contract, but inconsistently or in a conflicting manner. Parties would
then be under an obligation to use reasonable skill and care and to ensure a certain
outcome.60
This will be further investigated in the following sections.
57
IBA case (n 33); [1979] 11 BLR 29 (CA) 52.
58
Trebor Bassett Holdings Ltd v ADT Fire and Security plc [2011] EWHC 1936 (TCC), [2011] BLR 661;
[2012] EWCA Civ 1158, [2012] BLR 441.
59
Buckingham, ‘Understanding your design duty’ (n 7) 2.
60
Lupton, ‘Design Liability’ (n 8) 103.

18
3.2. The Canadian Standard
Since the courts in Robin Rigg61
have referred to Canadian (persuasive) authorities, it
seems appropriate to start with an investigation of the Canadian standard.
3.2.1. Little v North Columbia Construction Ltd62
Most recently, Hyslop J considered the Canadian standard in Little, a Supreme
Court case which centred on a contract between Mr Little (‘Little’) and North
Columbia Construction Ltd (‘Columbia’) to construct a snow roof for his mobile
home. However, the roof collapsed when snow came, due to the lack of cross
bracing on the post and beam support frame. Mr Bourcet stated this in his expert
opinion on the matter.63
The legal issue at hand was, of course, whether Columbia breached its contract
with Little, when it failed to build the snow roof for its intended purpose. To
determine whether this was the case, Hyslop J made the following findings of
fact;
Firstly, he concluded that the contractor had the skills necessary to build the
snow roof by establishing that the contractor enjoyed a good reputation, had a
good education and had 15 years’ experience. Even the contractor himself had
testified that the work was “well within my scope.”64
Secondly, it was established that the contractor controlled the process of
decision-making with regard to the construction of the snow roof, the necessary
materials, complying with municipality’s inspections and the building inspector’s
requests.65
Little had only supplied the contractor with a sketch of his wishes.
Otherwise he had had no input into the design or the production of the plans of
61
Robin Rigg case (n 1).
62
[2015] CarswellBC 3817, [2015] BCSC 2441, [2016] BCWLD 1373, 262 ACWS (3d) 355.
63
ibid [7].
64
ibid [17], [27], [28].
65
ibid [46].

19
the snow roof.66
Little was not at all aware of the fact that the contractor had
subcontracted the preparation of the building designs and site plan to a design
company.67
Furthermore, as a result of cross-examination, it was established that the
municipality’s building inspector, Mr Luini, and the contractor had discussions
prior to the final inspection. Luini had insisted on additional cross bracing to the
roof, but according to the contractor neither the municipality plans nor the
building code required cross bracing and, therefore, the installation of cross
bracing was not essential for the contractor to fulfil its obligations.68
Also the
contractor had not discussed Luini’s observation or his discussions with Luini
with his employer Little, while he was obliged to do so.69
Hyslop J ultimately concluded that Columbia breached its contract with Little,
since Little relied on the skill and judgment of Columbia concerning the
suitability of the design of the snow roof.70
The decision was based on the
following rule:
The general rule is that defects caused by an owner’s specification are not
the responsibility of the contractor, unless the contractor expressly
guarantees that the construction would be fit for a specific purpose, or a
warranty can be implied by the owner’s actual reliance on the
contractor’s skill and judgment.71
3.2.2. Greater Vancouver Water District v North American Pipe & Steel Ltd72
Hyslop J applied the aforementioned general rule with clear reference to
Chiasson J in Greater Vancouver, who had stated that “in my view, that is a
66
ibid [19], [41].
67
ibid [35], [36].
68
ibid [57] – [64].
69
ibid [51] – [56], [76].
70
ibid [77], [91].
71
ibid [65] (emphasis added).
72
[2012] CarswellBC 2410, [2012] BCCA 337, [2012] 11 WWR 271, [2012] BCWLD 6299, 13 CLR (4th) 176.

20
correct statement of the law.”73
Despite the fact that a general rule has been
recognised, the application of it still differs significantly.
In the Greater Vancouver case North American Pipe & Steel Ltd (‘NAP’) had
been allocated a contract, after a tendering process, to supply water pipes to the
water authority, Greater Vancouver Water District (‘GVWD’). GVWD had
clearly set out the design requirements, specifying the type of pipe and how it
was to be protectively coated. During installation of the pipes, however,
problems occurred concerning the pipes’ outer coating, proving them defective.
NAP did execute some remedial works, but under protest.74
The Supply Agreement contained the following relevant provisions, in clauses
4.4.3 and 4.4.4:
The Supply Contractor warrants … that the Goods … will conform to all
applicable Specifications … and, unless otherwise specified, will be fit
for the purpose for which they are to be used…
The Supply Contractor warrants and guarantees that the Goods are free
from all defects arising at any time from faulty design in any part of the
Goods.
The trial judge observed, furthermore, that the pipes had been produced in line
with GVWD’s specifications, but that the pipes endured serious defects in the
coating as a result of GVWD demanding the application of a seal coat over an
outer-wrapping.75
A crucial issue in the case was whether NAP had supplied suitable pipes. In that
respect the trial judge zoomed in on the role GVWD had played regarding the
specifications:
73
ibid [25].
74
Michael Parrish and Marina Pratchett, ‘Suppliers Beware When Warranting Design’, (Fasken Martineau
DuMoulin, 26 November 2012, 1) <http://www.lexology.com> accessed 2 July 2016.
75
Greater Vancouver (n 72) [2] – [5].

21
In order to determine whether the warranties and guarantees given by
NAP make it liable for any faults arising from the specification provided
by the GVWD, the circumstances of the selection of the seal coat, and the
specific wording of the Supply Agreement must be considered.
The GVWD is attempting to rely on the language of the Supply
Agreement to argue that even if the alleged deficiencies were caused by
the specification of the seal coat, the GVWD is not liable because NAP
guaranteed that the pipe would be fit for its intended purpose and it was
entitled to rely on NAP’s skill and judgment.
The problem with this argument is that it ignores that NAP was also
contractually obliged to build the pipe according to the GVWD’s
specifications and there is no evidence that the GVWD relied on NAP’s
skill and judgment to select the design or materials.
The GVWD developed its specifications without any input from NAP,
and did not make any inquiries of NAP as to whether NAP was of the
view the inclusion of the seal coat would cause problems with the fusion
of the layers of CTE coating. The responsibility and control of the design
process for the CTE coating was maintained by the GVWD throughout
the project.76
Interestingly, the trial judge concluded that the supply contract was inconsistent.
Had NAP chosen to shun the specified method of seal coating, the pipes would
not agree to the specifications and if it produced in line with the specifications,
the pipes would be defective.77
The trial judge subsequently referred to BG
Checo v BC Hydro78
in order to reconcile the inconsistency:
Where the provisions of a contract are inconsistent, an attempt should be
made to reconcile them by giving effect to the terms in accordance with
the intention of the parties. If it is impossible to reconcile the terms in this
way, then the term that is repugnant to the parties’ intention is to be
rejected in favour of giving effect to the term that reflects their real
intention.79
The trial judge determined that NAP could not be held responsible for defects
resulting from GVWD’s specifications. The words of clause 4.4.4 should
effectively be read as “all defects arising at any time from faulty design
76
ibid [15].
77
ibid [16].
78
[1993] 1 SCR 12.
79
ibid 23 – 24.

22
performed by NAP.”80
However, the Court of Appeal dismissed the decision of the trial judge as will be
further discussed in the next section.
3.2.3. The Steel Company of Canada Ltd v Willand Management Ltd81
According to Chiasson J the trial judge in Greater Vancouver “fell into the same
error as did the Ontario Court of Appeal in Steel Co[mpany].”82
In the latter case
the contractor had first advised the employer regarding the best way of
constructing a certain steel sheet roof. Parties discussed an adhesive substance
named ‘Curadex’ to bond insulating material to the steel sheet. The contractor
had some experience with Curadex and was prepared to use it, although he
preferred hot asphalt for sloping roofs. The employer’s specifications then
required the contractor to attach insulation boards using the material “Curadex or
approved equal”, which the contractor accepted. The contractor also provided a
five-year guarantee “that all above work specified will remain weather-tight and
that all material and workmanship employed are first class and without defect.”83
The Ontario Court of Appeal considered the issues at hand to be similar to the
New York case of MacKnight Flintic Stone v City of New York,84
which centred
on the construction of a contractor’s guarantee. The work was to be completed in
perfect order and “guaranteed absolutely weather and damp proof for five years
from the date of acceptance of the work. Any dampness or water breakage within
that time must be made good by the contractor without any cost or expense to the
City.” The Ontario Court of Appeal then followed the reasoning in the
MacKnight case by Vann J:
80
Greater Vancouver (n 72) [17] (emphasis added).
81
[1966] CarswellOnt 62, [1966] 1 SCR 746, 58 DLR (2d) 595.
82
Greater Vancouver (n 72) [30].
83
84
[1899] 160 NY 12.

23
The reasonable construction of the covenant under consideration is that
the plaintiff should furnish the materials and do the work according to the
plan and specifications, and thus make the floors water tight so far as the
plan and specifications would permit.85
The Ontario Court of Appeal, like the trail judge in Greater Vancouver,86
interpreted the guarantee by inserting certain words into the guarantee:
[U]nder the circumstances the plaintiff guaranteed only that, as to the
work done by it, the roof would be weather-tight in so far as the plans
and specifications with which it had to comply would allow.87
By doing so it seems that a contractor attracts no responsibility for the usage of
defective materials, regardless of his experience in a certain field, on the
condition that these materials have been requested by the employer and are part
of the specifications. This view is supported by another judgment by Vann J in
MacKnight:
The defendant, (i.e. the owner), specifically selected both material and
design and ran the risk of a bad result. If there was an implied warranty
of sufficiency, it was made by the party who prepared the plan and
specifications, because they were its work, and in calling for proposals to
produce a specified result by following them, it may fairly be said to
have warranted them adequate to produce that result.88
The Canadian Supreme Court, however, dismissed this approach with clear
reference to the express suitability statement in the 8th
edn of Hudson’s Building
and Engineering Contracts, of which the most recent version has been discussed
in section 2.3.3. of this dissertation.89
The Supreme Court therefore concluded:
[W]hatever the reason may have been, it appears to me that any risk
involved in the undertaking was accepted by those who were prepared to
tender in accordance with specifications that included the requirement of
providing a written guarantee that all material employed in the work as
85
Steel Company (n 81) 751.
86
Greater Vancouver (n 72).
87
Steel Company (n 81) 751 (emphasis added).
88
ibid 753.
89

24
first class and without defect, and that “all work (…) specified” would
remain weather tight for a period of five years.90
Similarly, Chiasson J concluded in Greater Vancouver that there was no legal
or logical inconsistency between the clauses 4.4.3 and 4.4.4.91
The guarantee in
clause 4.4.4 was clear and unambiguous and reflected the allocation of risk to
which the parties had agreed. Chiasson J stated, therefore, that “on the plain
language of the contract, North American is liable for any damages that resulted
from those defects. It does not matter whose design gave rise to the defects.”92
These cases show that express terms are capable of acting as freestanding
warranties of suitability.93
3.3. The US Spearin Doctrine
Despite the fact that both the trial judge in Greater Vancouver94
and the Ontario
Court of Appeal in Steel Company95
were overruled, the reasoning displayed by these
courts deserves some further attention in light of this dissertation. And since the
MacKnight96
case served as a guiding authority to the Ontario Court of Appeal, it
appears that this old American precedent, dealing with implied warranties of
suitability, remains compelling.97
However, when considering such implied warranties it would have been evenly
accurate to refer to the so-called ‘Spearin Doctrine’, which is based on the leading US
Supreme Court case United States v Spearin.98
The doctrine determines that:
90
Steel Company (n 81) 754.
91
Greater Vancouver (n 72) [23].
92
ibid [32] – [33].
93
Philip J. Scheibel, ‘Understanding Construction Warranties in Canada’, (2015) J. Can. C. Construction Law.
137, 153.
94
95
Steel Company (n 81).
96
MacKnight (n 84).
97
Paul Sandori, ‘Air Barriers: Who is Responsible?’, (1988) 28 CLR 152, 154.
98
[1918] 248 U.S. 132.

25
[A]n owner impliedly warrants that the plans and specifications, if followed,
will result in a functioning system. The corollary to the doctrine is that the
contractor will not be liable to the owner for loss or damage resulting solely
from defects or deficiencies in the plans and specifications.99
In addition, US courts require employers to produce clear and certain design
specifications.100
Although design and build contractors will usually receive general design and
performance criteria from the employer (‘performance specifications’), instead of
detailed design documents under a traditional construction contract (‘design
specifications’), the assumption that design and build contractors will always carry
the risk of defects in specifications is not completely true. When dealing with so-
called ‘hybrid specifications’, or in situations where the employer fully controls the
design, this might not be the case. As stated by Hammersmith and Lozowicki, “the
increasing use of design-build procurement, and in general the furnishing by project
owners of specifications which are a composite of both ‘design’ and ‘performance’
elements, muddy the application of the Spearin and Blake rules.”101
Since the Spearin Doctrine does not apply to construction contracts based on
performance specifications, the distinction between ‘design’ and ‘performance’
specifications has become a crucial matter for the US courts. A contractor executing
the works under design specifications “has no discretion to deviate from the
specifications, but is ‘required to follow them as one would a road map’.”102
A
performance specification on the other hand is a “statement of required results with
criteria verifying compliance, without unnecessary limitations on the methods of
99
Lauren P. McLaughlin and Shoshana E. Rothman, ‘When Spearin Won’t Work: How Contractual Risk
Allocation Often Undermines This Landmark Ruling’, (2015) 35-SUM Construction Law. 39, 40.
100
Blake Construction Company v United States, [1993] 987 F.2d 743.
101
Harold E. Hammersmith and Edward B. Lozowicki, ‘Can the Spearin Doctrine Survive in a Design-Build
World: Who Bears Responsibility for Hybrid Specifications?’, (2008) Vol. 2 No. 1 J ACCL 123, 124.
102
Blake (n 100) 745.

26
achieving the required results.”103
As a result the case law on these types of warranty
disputes depends heavily on the facts and requires a thorough investigation of the
specifications by the courts.104
In design and build situations it is generally accepted,
however, that an employer’s guarantee is implied when details such as particular
components, dimensions, types or qualities of materials (and other details) are
nominated by the employer.105
Special reference is made to AAB Joint Venture v United States106
, in which case the
design and build contractor was required to follow the standards of the American
Association of State Highway and Transportation Officials (AASHTO) while
building a military storage base in Israel. Next to the AASHTO standards (dealing
with the density of the groundfill) the government had added technical requirements
(dealing with the size of the stones to be used as groundfill) to the bidding
specifications. After the contractor had discovered that following the specifications
would lead to a defective outcome, the parties’ dispute centred on the question
whether the specifications were of the performance kind (as the government claimed
them to be). Since the contractor was able to convince the court that the AASHTO
standards could not be executed, due to the technical requirements for the size of the
stones, the court decided that the contractor was allowed to reasonably rely on the
bidding specifications. Hammersmith and Lozowicki have commented in this respect
that:
[T]he court relied on traditional contract interpretation, to determine the
design-build contractor’s and owner’s reasonable expectations and applied the
Spearin implied warranty to determine the contractor was entitled to an
equitable adjustment.107
103
AIA/AGC Joint Committee, ‘Recommended Practices of the Houston Chapters of the AIA/AGC, 1.06 -
Application of Performance Specifications (January 1995)’, (April 2011) <http://www.agchouston.org> accessed
21 July 2016.
104
Laura E. Hauser and William J. Tinsley Jr., ‘Eyes Wide Open: Contractors Must Learn to Identify And React
To Design Risks Assumed Under Performance Specifications’, (2007) 27-SUM Construction Law. 32, 33.
105
Hammersmith and Lozowicki, ‘Can the Spearin Doctrine Survive in a Design-Build World’ (n 101) 125 –
126.
106
[2007] 75 Fed. Cl. 414 (AAB case).
107
128.

27
Finally, it has become clear from recent case law108
that the presence of contractor’s
express guarantees regarding the suitability of the design will block the applicability
of the Spearin Doctrine.109
3.4. Discussion; literal vs contextual approach
Considering the fact that the Spearin Doctrine goes back to 1918, it is interesting to
notice a modern trend towards ascertaining the intention of the parties through the so-
called ‘categorical analysis’. Characterising the plans and specifications in question
as either a design or performance specification has generally replaced the traditional
fact-intensive, expectations-based analysis. Most importantly, the categorical analysis
is strictly based on the language of the contract. Even though this very literal
approach has its benefits, as it is for example far less time consuming, it has also
attracted criticism from some authors, like Golden and Thomas,110
who feel strongly
that the plain language of the contract cannot reveal the expectations of the parties.111
Golden and Thomas describe in detail how the current methodology, based on the
specification’s language, differs from the earlier, contextual approach “looking below
the surface of the specification’s phrasing for evidence of how the parties intended to
allocate the risk of loss for the defective specification.”112
According to Golden and
Thomas the Spearin Doctrine had essentially been created to serve the parties and
their expectations, while at the same time shielding contractors from unforeseen risks.
In this respect Golden and Thomas explicitly address the Helene Curtis Industries
Inc. v United States113
case to underline the importance of defining the wider
108
Greenbriar Digging Service Limited Partnership v South Central Water Association Inc., No. 3:07CV601
DPJ-JCS, [2009] WL812241, 3 – 4 (S.D. Miss. Mar. 26, 2009).
109
Joseph A. Cleves Jr. and Richard G. Meyer, ‘No-Fault Construction’s Time Has Arrived’, (2011) 31 Constr.
Law. 6, 7.
110
Kevin C. Golden and James W. Thomas, ‘The Spearin Doctrine: The False Dichotomy Between Design and
Performance Specifications’, (1995 – 1996) 25 Pub. Cont. L.J. 47.
111
125.
112
Golden and Thomas, ‘The Spearin Doctrine’ (n 110) 53.
113
[1963] 312 F.2d 774 (Ct. CL. 1963).

28
circumstances regarding the contract’s formation as well as the parties’ conduct. They
refer to the language of the specification as “a relatively infertile source of such
information.”114
Interestingly, in the recent AAB115
case, as discussed in the previous section, the court
applied the contextual approach and concluded that the contractor reasonably relied
on the bidding specifications. Since the government had argued that the specifications
should be classified as performance specifications, the question comes to mind
whether a literal approach by the court would have produced a different outcome in
this dispute. Although it will remain unclear how a literal approach would have
affected the verdict, the mere fact that codes of practice are generally regarded as
guidelines (with reference to section 2.4. of this dissertation) may indicate that the
contractor was indeed given discretion by the government to deviate from the
AASHTO standards as well as the added technical requirements. In view of this, a
literal approach could conceivably have altered the outcome, categorising the
specifications as performance specifications and leaving the contractor without an
implied warranty.
Despite the fact that the Canadian cases Greater Vancouver116
and Steel Company117
centre on express obligations, in identifying the extent of the duties imposed on the
contractor, it appears that the lower courts applied a similar contextual approach, as
did the courts in the AAB118
case. The Canadian courts, however, felt inclined to
insert certain words into the guarantees given by the respective contractors. Such
actions could possibly be perceived as being on the cusp of rectification (which will
briefly be discussed in the following chapter). Nevertheless, the contextual approach
lead the lower courts to a verdict in favour of the respective contractors, while the
higher courts’ literal approach held the respective contractors liable for any damages
resulting from designer defects, regardless of whose design gave rise to the defects. In
other words, the contextual approach defined the extent of the contractors’ duty as
114
Golden and Thomas, ‘The Spearin Doctrine’ (n 110) 53 - 56.
115
AAB case (n 106).
116
117
118
AAB case (n 106); cf Hammersmith and Lozowicki (n 107).

29
being one of reasonable skill and care, whereas the literal approach defined the extent
of the contractors’ duty as one of (express) suitability.
If anything these cases suggest that a choice between a literal or contextual approach
could affect the extent of the duties imposed on contractors. Since the courts
generally seem to differ as to the importance placed upon contextual factors, this
indicates an added uncertainty for contracting parties when formulating their mutual
obligations in construction contracts.
The following chapter will further investigate the ‘rules’ of contractual interpretation
and subsequently review the reasoning of both the High Court and the Court of
Appeal in Robin Rigg.119
119

30
4. The English Perspective
4.1. Contractual Interpretation: an iterative process120
It should not come as a surprise that the English courts are equally struggling in
finding an appropriate approach to contractual interpretation. It is yet far from settled
whether the English courts favour a literal approach to a more ‘purposive’ approach.
The general question therefore remains: will the words overshadow the context or
vice versa?
To properly understand the current state of affairs it is necessary to get acquainted
with the principles of interpretation, also referred to as the ‘Hoffmann Principles’, as
were set out by Lord Hoffmann in the Investors Compensation Scheme v West
Bromwich Building Society121
case:
(1) Interpretation is the ascertainment of the meaning which the document would
convey to a reasonable person having all the background knowledge which
would reasonably have been available to the parties in the situation in which
they were at the time of the contract.
(2) The background was famously referred to by Lord Wilberforce as the ‘matrix
of fact’, but this phrase is, if anything, an understated description of what the
background may include. Subject to the requirement that it should have been
reasonably available to the parties and to the exception to be mentioned next, it
includes absolutely anything which would have affected the way in which the
language of the document would have been understood by a reasonable man.
(3) The law excludes from the admissible background the previous negotiations of
the parties and their declarations of subjective intent. They are admissible only
in an action for rectification. The law makes this distinction for reasons of
practical policy and, in this respect only, legal interpretation differs from the
120
H.G. Beale (ed), Chitty on Contracts, (32nd
edn, Sweet & Maxwell 2015); E. Peel (ed), Treitel on The Law of
Contract, (14th
edn, Sweet & Maxwell 2015); K. Lewison, The Interpretation of Contracts, (6th
edn, Sweet &
Maxwell 2015); G. McMeel, The Construction of Contracts: Interpretation, Implication, and Rectification, (2nd
edn, Oxford University Press 2011).
121
[1998] 1 WLR 896 (ICS case).

31
way we would interpret utterances in ordinary life. The boundaries of this
exception are in some respects unclear. But this is not the occasion on which to
explore them.
(4) The meaning which a document (or any other utterance) would convey to a
reasonable man is not the same thing as the meaning of its words. The meaning
of words is a matter of dictionaries and grammars; the meaning of the
document is what the parties using those words against the relevant
background would reasonably have been understood to mean. The background
may not merely enable the reasonable man to choose between the possible
meanings of words which are ambiguous but even (as occasionally happens in
ordinary life) to conclude that the parties must, for whatever reason, have used
the wrong words or syntax (see Mannai Investment Co Ltd v Eagle Star Life
Assurance Co Ltd).122
(5) The ‘rule’ that words should be given their ‘natural and ordinary meaning’
reflects the commonsense proposition that we do not easily accept that people
have made linguistic mistakes, particularly in formal documents. On the other
hand, if one would nevertheless conclude from the background that something
must have gone wrong with the language, the law does not require judges to
attribute to the parties an intention which they plainly could not have had. Lord
Diplock made this point more vigorously when he said in Antaios Cia Naviera
SA v Salen Rederierna AD (The Antaios):123
[I]f detailed semantic and syntactical analysis of words in a commercial
contract is going to lead to a conclusion that flouts business common
sense, it must be made to yield to business common sense.124
(6) Adding to the five Hoffmann Principles Lord Mance stated in Re Sigma
Finance Corporation (In Administration)125
that:
[T]he resolution of an issue of interpretation (…) is an iterative process
(…) ‘checking each of the rival meanings against other provisions of
the document and investigating its commercial consequences’. 126
122
[1997] AC 749.
123
[1985] AC 191.
124
ibid 201.
125
[2009] UKSC 2; [2010] 1 ALL ER 571.
126
ibid 12.

32
While these principles should have created certainty, enabling the English courts to
construe commercial contracts in a resolute manner, the opposite seems to be true.
The principles have caused tension in the case law.127
As the first principle clearly points out, the parties’ agreement requires an objective
interpretation. Instead of focusing on the individual parties and their understanding of
the words, importance should be given to the understanding of the words by a
reasonable person in the position of the parties. It then follows from the second
principle that interpretation is a so-called ‘unitary exercise’, meaning that the courts
will look at both the language used as well as the context in which it was used. In
addition, Lord Hoffmann confirmed the ‘primacy of the language’ in BCCI v Ali128
stating “the ‘background’ only includes ‘absolutely anything’ which a reasonable
person would have regarded as relevant.”129 130
The difficulty appears to be that the ‘Hoffmann Principles’ have stimulated a
purposive attitude towards interpretation. For example, courts have allowed a
business sense to business documents,131
but the extent of ‘business common sense’
was never clarified. It was determined by Lord Clarke in Rainy Sky SA v Kookmin
Bank132
, however, that “if there are two possible constructions, the court is entitled to
prefer the construction which is consistent with business common sense and to reject
the other.”133
In Napier Park European Credit Opportunities Fund Ltd v
Harbourmaster Pro-Rata CLO BV134
it was further established that ‘business
common sense’ should be used from the offset by the courts in their ‘unitary exercise’
127
Beale (ed) (n 120) [13-046].
128
[2001] UKHL 8; [2002] 1 AC 251.
129
ibid [39].
130
Peel (ed) (n 120) [6-008] – [6-011].
131
See Lord Bingham in Homburg Houtimport BV v Agrosin Private Ltd (The Starsin) [2003] UKHL 12; [2004]
1 AC 715, [10].
132
[2011] UKSC 50; [2011] 1 WLR 2900.
133
ibid [21].
134
[2014] EWCA Civ 984.

33
to discover any ambiguity.135
Reference was made in that respect to a statement by
Lord Sumption in Sans Souci Ltd v VRL Services Ltd:136
It is generally unhelpful to look for an ‘ambiguity’, if by that is meant an
expression capable of more than one meaning simply as a matter of language.
True linguistic ambiguities are comparatively rare. The real issue is whether
the meaning of the language is open to question. There are many reasons why
it may be open to question, which are not limited to cases of ambiguity.137
Moreover, it should be stressed that in cases of unambiguous language the courts are
bound to it,138
whether or not the outcome is commercially disadvantageous to one of
the parties.139
Interestingly, allowing ‘business common sense’ to be used as part of the ‘unitary
exercise’ might be an important reason of the frequent tension between the words
chosen by the parties and the courts’ search for the commercial bargain. The Supreme
Court appears to have acknowledged this reoccurring phenomenon in Arnold v
Britton,140
while attempting to counterbalance it. Lord Neuberger made the following
comments concerning the interpretation of contractual provisions:
The exercise of interpreting a provision involves identifying what the parties
meant through the eyes of a reasonable reader, and, save perhaps in a very
unusual case, the meaning is most obviously to be gleaned from the language
of the provision. Unlike commercial common sense and the surrounding
circumstances, the parties have control over the language they use in the
contract. And, again save perhaps in a very unusual case, the parties must have
been specifically focussing on the issue covered by the provision when
agreeing the wording of that provision.141
[T]he clearer the natural meaning the more difficult it is to justify departing
from it. However, that does not justify the court embarking on an exercise of
searching for, let alone constructing, drafting infelicities in order to facilitate a
135
ibid [36].
136
[2012] UKPC 6.
137
ibid [14].
138
Sugarman v CJS Investments LLP [2014] EWCA Civ 1239; [2015] 1 BCLC 1, [43].
139
Peel (ed) (n 120) [6-012].
140
[2015] UKSC 36; [2015] AC 1619.
141
ibid [17].

34
departure from the natural meaning.142
Commercial common sense is only relevant to the extent of how matters would
or could have been perceived by the parties, or by reasonable people in the
position of the parties, as at the date that the contract was made.143
[A] court should be very slow to reject the natural meaning of a provision (…)
The purpose of interpretation is to identify what the parties have agreed, not
what the court thinks that they should have agreed (…) Accordingly, when
interpreting a contract a judge should avoid re-writing it in an attempt to assist
an unwise party or to penalise an astute party.144
Although Lord Neuberger’s comments seem to suggest that less reliance should be
placed on ‘commercial common sense’, and therefore on the contextual approach, it
remains unclear whether Lord Clarke (Rainy Sky145
) and Lord Mance (Re Sigma146
),
both of whom were absent from the panel in Arnold v Britton,147
would have been in
full support of Lord Neuberger’s statement. Perhaps it would be best to follow Simon
James and Kate Gibbons in their balanced conclusion that Lord Neuberger does not
seem to suggest a fundamentally different approach to interpretation. Instead he
appears to indicate that the literal approach should only be replaced by a contextual
approach in cases where the words are obviously mistaken/clearly wrong.148
4.2. Boundaries of Interpretation
Despite Lord Neuberger’s aforementioned comments, when the language of an
agreement does not reflect the parties’ consensus, Hoffmann Principles four and five
could be used to correct drafting mistakes. Lord Hoffmann emphasised in Chartbrook
Ltd v Persimmon Homes Ltd149
that courts have no boundaries regarding the amount
of verbal arrangement or correction to be applied. Although it should be clear that
“something has gone wrong with the language and that it should be clear what a
142
ibid [18].
143
ibid [19].
144
ibid [20].
145
Rainy Sky (n 132).
146
Re Sigma (n 125).
147
Arnold v Britton (n 140).
148
Simon James and Kate Gibbons, ‘English law contractual interpretation: shades of grey’, (2016) Int. ALR 35.
149
[2009] UKHL 38; [2009] 1 AC 1101.

35
reasonable person would have understood the parties to have meant.”150
When making corrections as a matter of interpretation, the written agreement will,
according to Richard Buxton, theoretically remain as construed, whereas practically
the original consensus will be enforced instead of the written agreement. In other
words, the meaning of the written agreement is replaced with an intention of the
parties that the document itself did not demonstrate. This relates very closely to the
essence of rectification.151
Nevertheless, the difference between interpretation (common law) and rectification
(equity) has recently been underlined by Lord Neuberger in Marley v Rawlings:152
If it is a question of interpretation, then the document in question has, and has
always had, the meaning and effect as determined by the court, and that is the
end of the matter (…)
If it is a question of rectification, then the document, as rectified, has a
different meaning from that which it appears to have on its face, and the court
would have jurisdiction to refuse rectification or to grant it on terms.153
This distinction has its roots in the English objective theory of contractual
interpretation, as stressed in Chartbrook.154
Consequently, pre-contractual
negotiations are excluded from any interpretative attempt. According to Lord
Hoffmann, statements in pre-contractual negotiations “will be ‘drenched in
subjectivity’, so that to look at them will undermine the court’s obligation to construe
the contract, and its background, in terms of the objective perception of the
reasonable observer.”155
Similarly, it is considered problematic to delete or insert an
entire page, while interpreting an agreement. Pre-contractual communications or extra
150
ibid [25].
151
Richard Buxton, ‘”Construction” and Rectification after Chartbrook’, (2010) 69 Cambridge LJ 253, 256 –
258.
152
[2014] UKSC 2; [2014] 2 WLR 213.
153
ibid [40].
154
Chartbrook (n 149) [33].
155
ibid [38].

36
documents can therefore only be relied upon in rectification.156
4.3. Robin Rigg under review
After having discussed the issues surrounding ‘double obligations’ and ‘contractual
interpretation’, it is now time to zoom in on the Robin Rigg157
case. How do the
courts in this particular matter deal with identifying the precise extent of the
obligations imposed upon MTH?
With reference to the general introduction in Chapter 1, MTH contracted with E.ON
in 2006 for the design, fabrication and installation of the foundations for 60 wind
turbine generators for the Robin Rigg Offshore Wind Farm in the Solway Firth. After
completion of the works in February 2009, the grouted connections started to fail in
April 2010. This was due to an error in the international standard J101. Remedial
works had to be carried out costing the sum of €26.25 million. Meanwhile E.ON and
MTH were in dispute about the responsibility for the remedial work, with E.ON
alleging that MTH was in breach of ‘overriding fitness for purpose obligations.’ MTH
responded by saying that any fitness for purpose obligation was qualified by its duty
to comply with J101.
4.3.1. The reasoning of the High Court158
Edwards-Stuart J has divided his judgment into two parts; a) the construction of
the contract, and b) the design. Since his reasoning contains lots of references to
relevant contractual terms, these terms have been attached as Appendix II.
Furthermore, the precedence of the contractual documents is as follows:
i) the Form of Agreement (Part B);
ii) the Conditions of Contract (Part D) and the list of Definitions (Part C);
iii) the Commercial Schedules (Part E) and the Schedules of Prices,
156
Paul S. Davies, ‘Rectification versus Interpretation: The Nature and Scope of the Equitable Jurisdiction’,
(2016) 75 Cambridge LJ 62, 68.
157
158
[2014] EWHC 1088 (TCC), [2014] BLR 450.

37
Payment Profile and Draft Programme (Part L);
iv) the Employer’s Requirements (Part G, H, I (Technical Requirements), J
and K);
v) the Annexes to the Employer’s Requirements;
vi) Volume 2A, 2B, and 3 of the Contractor’s Tender Return (also known
as Part M).
When addressing the issue in relation to contractual interpretation, the judgment
shows that the parties disagree whether Clause 8.1. of the Conditions (Part D),
read in conjunction with Clauses 3.2.2.2. and 3b.5.1. of the Technical
Requirements (‘TR’) (Part I), expects MTH to deliver suitability in achieving a
service life of 20 years or merely reasonable skill and care in designing the
foundations on the basis of a 20 year design life in accordance with J101.159
With reference to Appendix II, the Clauses 3.2.2.2. and 3b.5.1. TR (Part I) both
“ensure a lifetime of 20 years”, whereas Clause 8.1. of the Conditions (Part D)
generally refers to ‘Good Industry Practice’. On this basis it was submitted by
Mr. Streatfeild-James (MTH) that “the effect would be that the 2 isolated
references to ‘ensure’ in general sections of the Specification would supersede all
the more detailed and specific references to ‘design life’. That cannot be
right.”160
But the High Court expressed a clear preference for Mr. Marrin’s (E.ON)
submission, placing emphasis on Clause 3.1. TR (Part I) and Clause 8.1. (x) of
the Conditions (Part D). Clause 3.1. TR first of all stresses that “(…) the
contractor shall assume full responsibility for design (…)”161
Clause 8.1. (x) of
the Conditions furthermore states that “(…) the Works as a whole shall be (…)
fit for its purpose as determined in accordance with the Specification using Good
Industry Practice.”162
According to Mr. Marrin, the ‘purpose’ of the works
should be determined from the TR (since Clause 8.1. (x) of the Conditions
159
ibid [61].
160
ibid [65].
161
ibid [25].
162
ibid [23].

38
mentions ‘Specification’, which should be seen as a reference to the Employer’s
Requirements containing the TR). The reference to ‘Good Industry Practice’ did
not, in Mr. Marrin’s view, qualify the obligation as to fitness for purpose. Mr.
Streatfeild-James argued the opposite, that “it was the ‘fitness for purpose’ that
was to be determined using Good Industry Practice.”163
Interestingly, Clause 3.1. TR also addresses the fact that the Technical
Requirements of Part I “are the MINIMUM requirements of the Employer to be
taken into account in the design.”164
In that respect Clause 3.2.2.2. TR prescribes
that the foundations require a design according to the J101 standard.165
It appears
therefore that J101 should be treated as an employer’s specification. Edwards-
Stuart J acknowledges this possibility and states subsequently that the Canadian
decisions in Greater Vancouver166
are persuasive
authorities for the suggestion that “the existence of an express warranty of fitness
for purpose by the contractor can trump the obligation to comply with the
specification even though that specification may contain an error.”168
Furthermore, Edwards-Stuart J reiterates the principles of contractual
interpretation169
to reach the following conclusion that obligations of ‘reasonable
skill and care’ and ‘fitness for purpose’ can exist side by side and are not
mutually incompatible.170
Edwards-Stuart J considers the language of this
contract, especially Clause 3.2.2.2. TR, to be clear and unambiguous. There is no
inconsistency “with the other terms of the contract or with the intentions of the
parties as reflected by the Agreement as a whole.” Consequently, MTH
guaranteed that the foundations would have a service life of 20 years.171
163
ibid [66].
164
ibid [25].
165
ibid [26].
166
167
168
[2014] EWHC 1088 (TCC) (n 158) [74].
169
ibid [75] – [76].
170
ibid [77].
171
ibid [80].

39
When addressing the issue in relation to the design, the judgment emphasises the
importance in this case of DNV being the author of the J101 standard, while also
being nominated under the contract as the certifying authority.172
Firstly,
Edwards-Stuart J establishes on the basis of expert evidence that the flaw in the
J101 standard “is not a matter that ought to have put a competent designer on
notice (…)”173
Designer Rambøll could not reasonably be expected to discover
the flaw.
Secondly, it is established by Edwards-Stuart J that MTH was not obliged to
provide test data regarding the use of shear keys (Clause 10.5.1 TR), since
MTH’s tender excluded the use of shear keys and E.ON had accepted the tender.
Therefore, MTH’s obligation was to design the foundations in accordance with
J101 and exercise reasonable skill and care.174
Furthermore, the question whether Rambøll should have carried out tests or a
finite element analysis regarding the conservative assumption that axial load and
bending moment did not interact (paragraph A202 of J101), was answered
negatively. On the basis of Professor Schaumann’s evidence it was accepted that
in situations where “the certifying body shares or makes the same assumption,
then the designer would have satisfied the requirement (…)”175
As DNV was part
of a respectable school of thought in the offshore wind turbine industry
underlining Rambøll’s conservative approach assessing the axial load and the
bending moment separately, Rambøll did not have to do any more.176
Similarly, Professor Schaumann’s evidence was used to establish that, although
Rambøll did not carry out any form of evaluation of the actual grouted
connection (the guidance note to paragraph B101 of J101), any check would
have made no difference to the design of the grouted connections.177
Equally, it
172
ibid [116].
173
ibid [86].
174
ibid [114].
175
ibid [125].
176
ibid [129], [130].
177
ibid [140], [141].

40
was decided on the basis of expert evidence that the requirement for
experimental verification (paragraph D101 of J101) was aimed at the body
concerned with the verification of the design. Since DNV did not desire
verification of Rambøll’s grouted connection, this indicates that DNV considered
that sufficient documentation was available of that behaviour.178
4.3.2. The reasoning of the Court of Appeal179
Turning now to Part 5 (‘the legal principles’) of the Court of Appeal’s judgment,
Jackson LJ acknowledges the Canadian (persuasive) authorities and states that
construction contracts “may impose a double obligation upon the contractor.”180
Jackson LJ then refers to the principles of contractual interpretation in order to
decide whether the contract between E.ON and MTH imposes a double
obligation.181
Interestingly, Jackson LJ refers to Lord Collins’ concurring judgement in Re
Sigma182
as part of the iterative process:183
In complex documents of the kind in issue here there are bound to be
ambiguities, infelicities and inconsistencies. An over-literal interpretation
of one provision without regard to the whole may distort or frustrate the
commercial purpose.184
Jackson LJ combines this judgment of Lord Collins with Lord Clarke’s
observation in Rainy Sky185
concerning ‘business common sense’.186
According
to Jackson LJ “the court must consider what [a reasonable person] X would have
understood clause 8.1 of the conditions and TR paragraph 3.2.2.2 (2) to mean.”
178
ibid [151], [152].
179
[2015] EWCA Civ 407, [2015] BLR 431.
180
ibid [79].
181
ibid [80].
182
Re Sigma (n 125).
183
[2015] EWCA Civ 407 (n 179) [84].
184
Re Sigma (n 125) [35].
185
Rainy Sky (n 132).
186
ibid [21].

41
And also that “there are likely to be ambiguities and inconsistencies within the
documents. It must not allow itself to be led astray by those ambiguities and
inconsistencies.”187
In the following Part 6 (‘decision on MTH’s appeal) of the Court of Appeal’s
judgement, Jackson LJ establishes that the second part of Clause 3.2.2.2 TR,
ensuring a lifetime of 20 years, “at first sight (…) is a warranty that the
foundations will function for 20 years.”188
But comparing this provision with
other provisions in the TR, it appears that the TR incorporates many stipulations
regarding a design life of 20 years. According to Jackson LJ, “if a structure has a
design life of 20 years, that does not mean that inevitably it will function for 20
years, although it probably will.”189
Jackson LJ combines the first part of Clause
3.2.2.2 TR with Clause 8.1 (iv), which requires the contractor to comply with
J101; a guideline for offshore structures with a design life of 20 years.190
Jackson LJ further acknowledges that both Clause 3.2.2.2 (2) and Clause 3b.5.1.
TR ensure a lifetime of 20 years, but he is questioning these clauses as part of the
TR and J101 by stating:
If the contractor was really required to produce a guaranteed operational
life of 20 years, the rest of the TR and J101 (even absent any error in
respect of δ) would not be the right way to set about the task.191
As Mr Streatfeild-James points out, if the contract required an absolute
warranty of quality, one would expect to see it in clause 8.1, not tucked
away in the Technical Requirements. The TR are a detailed document
which comes fourth in the order of precedence.192
Regarding Clause 8.1 (x) of the Conditions Jackson LJ observes that ‘Good
Industry Practice’ is defined in the List of Definitions and relates to reasonable
skill and care as well as compliance with J101. The words ‘fit for purpose’ are
187
[2015] EWCA Civ 407 (n 179) [87].
188
ibid [90].
189
ibid [91].
190
ibid [92].
191
ibid [95].
192
ibid [97].

42
equally defined in the List of Definitions and refer to the Employer’s
Requirements (i.e. the TR and J101).193
Accordingly Jackson LJ concludes that:
A reasonable person in the position of E.ON and MTH would know that
the normal standard required in the construction of offshore wind farms
was compliance with J101 and that such compliance was expected, but
not absolutely guaranteed, to produce a life of 20 years.194
TR paragraphs 3.2.2.2 (2) and 3b.5.1 are inconsistent with the remainder
of the TR and J101. They are too slender a thread upon which to hang a
finding that MTH gave a warranty of 20 years life for the foundations (…)
Clause 8.1 does not contain any warranty that the foundations will have a
20 year life.195
Jackson LJ continues his judgment by addressing the issue in relation to the
design. With respect to Clause 10.5.1 TR he states very clearly that “MTH
should have carried out appropriate tests and submitted the resulting data to the
Engineer and the Certifying Authority.”196
Similarly, Jackson LJ disagrees with
the High Court’s view on paragraph D101 of J101, which “is directed to the
designer, in this case MTH acting through Rambøll.”197
This provision is
identical to Clause 10.5.1 TR in prescribing ‘experimental verification’, but
regarding both provisions Jackson LJ concludes that “this court should not
interfere with those findings (…) the Court of Appeal is always slow to overturn
findings of fact on technical issues made by TCC judges.”198
Therefore, it is
decided that testing would not have changed the situation surrounding the
foundation defects. According to Underhill LJ, “Prof Schaumann was expressing
real doubt as to whether testing of the kind hypothesised would have revealed the
problem (…) thus afforded a clear evidential basis for the Judge’s conclusion.”199
193
ibid [101] – [103].
194
ibid [104].
195
ibid [106].
196
ibid [122].
197
ibid [133].
198
ibid [128].
199
ibid [145], [146].

43
4.4. Discussion
When comparing the two judgments in Robin Rigg, a profoundly different attitude
towards contractual interpretation is revealed. Where it may be said that the High
Court follows the ‘primacy of the language’, the Court of Appeal seems to favour the
more contextual approach. Consequently, the High Court identifies MTH’s design
obligation as one of (express) suitability, whereas the Court of Appeal defines it as
being one of reasonable skill and care (considering the contract as a whole to
outweigh the language of certain express terms). Similar results were reached in
Greater Vancouver200
, as previously discussed in section 3.4.
of this dissertation. It might be suggested, therefore, that a pattern is emerging.
Whenever the courts allow themselves to interpret the contract beyond the plain
language, the chance of express terms being acknowledged as freestanding warranties
of suitability appears to decrease.
Generally it seems a struggle for the courts to decide how to handle the language of
the contract in question. Unambiguous language should be respected at all times,202
even when the outcome is supposedly disadvantageous to one of the parties.203
But, as
the Court of Appeal has clearly underlined in Robin Rigg, an over-literal
interpretation could prevent the courts from discovering the commercial purpose and,
subsequently, the intention of the parties.204
This discrepancy indicates that there is
no real consensus concerning the importance of the background knowledge or
‘commercial common sense’. It could therefore be the case that Lord Neuberger was
genuinely trying to take a stance in favour of the literal approach in the recent Arnold
v Britton205
case.
Admittedly, the express terms relied on by E.ON in Robin Rigg were to be found in
the Technical Requirements (‘TR’). It is questionable, however, if any crucial
200
201
202
See Sugarman (n 138).
203
See Peel (ed) (n 139).
204
See Re Sigma (n 184).
205
Arnold v Britton (n 140) [17] – [20].

44
importance should be given to the fact that no express warranties of suitability were
present in the Conditions themselves. Jackson LJ would expect such warranties to be
mentioned in the Conditions and not in a document like the TR (coming fourth in the
order of precedence). Despite Jackson LJ’s view, the reference from the Conditions to
the TR was unambiguous as well as the language used in the two provisions ensuring
a lifetime of 20 years. As Edwards-Stuart J clearly mentioned, “this is not one of
those cases where the court is being asked to choose between two available meanings
of the words used.”206
Similarly, the factual matrix showed no indication of the
contracting parties being against an express suitability upon MTH. Perhaps the pre-
contractual circumstances could have provided useful information in this respect. Pre-
contractual information could have also conceivably confirmed E.ON’s explicit wish
of granting MTH the design and build contract under the absolute obligation that the
works as a whole would be fit for a service life of 20 years. As stated by Edwards-
Stuart J, “whether or not that was the subject of a conscious decision in this case we
do not know.”207
Even though a contextual approach seems to have the benefit of serving the parties
and their expectations,208
in this particular matter it is argued by John Hughes D’Aeth
that “the inadequacy of J101 weighed heavily on the court’s mind. It evidently had
considerable sympathy for the contractor and was anxious to find in the contractor’s
favour if possible.”209
This assumption may be a possible explanation for the Court of
Appeal’s ultimate conclusion that “the contract properly construed did not contain a
warranty for 20 years service life.”210
But it is clear that the Court of Appeal’s
judgment did not satisfy many commentators, since referencing from general
obligations to more detailed requirements in other parts of the contract is standard
practice.211
As Michael Sergeant has illustrated most accurately:
206
[2014] EWHC 1088 (TCC) (n 158) [80].
207
ibid [79].
208
See Golden and Thomas, ‘The Spearin Doctrine’ (n 110).
209
John Hughes D’Aeth, ‘Design defects in offshore wind turbines: it’s an ill wind…’, (Berwin Leighton
Paisner, 20 May 2015, 1) <https://www.blplaw.com/expert-legal-insights/articles/design-defects-offshore-wind-
turbines-ill-wind/> accessed 18 July 2016.
210
[2015] EWCA Civ 407 (n 179) [141].
211
Lupton, ‘Design Liability’ (n 8) 107.

45
One of the weaknesses with this iterative approach is that it is premised on the
assumption that the process of interpretation is designed to resolve
inconsistencies within the contract documents (…) But Hojgaard did not
involve directly contradictory provisions.212
This immediately brings to mind Lord Neuberger’s ‘stance’ in Arnold v Britton.213
In
short, if the meaning of the language is not open to question, a court should refrain
itself from re-writing the contract.214
Returning now to the pattern identified earlier, it seems to be considerably problematic
for practitioners, especially drafters, acting in the construction industry that the courts
could possibly ignore parties’ reliance on express terms. Even in situations where
freestanding warranties of suitability have consciously been incorporated in a contract,
the courts could decide that the contract as a whole is inconsistent and surpass the
plain language of the contract. This development has been adding uncertainty to the
existing difficulties surrounding double obligations imposed on contractors and the
proper drafting of express terms.
The main question to be answered by the Supreme Court in the Robin Rigg case,
therefore, is under which circumstances courts are allowed to interpret the contract
beyond the plain language. Or to put it differently, where should the literal approach
end and should the contextual approach begin? And how would the Supreme Court in
that respect understand Lord Neuberger’s comments in Arnold v Britton?
While at this stage it seems almost impossible to predict a possible outcome, it may be
said that the Court of Appeal seemed all too eager to leave the literal approach and
apply the contextual approach. Following Lord Neuberger’s comments it is fairly
suggested that courts should stay with the written text as long as possible.
Furthermore, the Court of Appeal appears to be using the iterative process as a means
of identifying ‘design life’ and ‘service life’ as rivalling concepts in the contract,
considering the presence of ‘service life’ as being inconsistent with the contract as a
212
Michael Sergeant, ‘Kitchen sink drafting style under scrutiny’, (2015) 26 7 Cons Law 20, 22.
213
Arnold v Britton (n 140).
214
ibid [20].

46
whole.215
It may be said, however, that the presence of two different concepts in a
contract, one of which is expressing a guarantee, should reasonably be regarded as
evidence of a double obligation imposed upon the contractor. It is suggested, with
respect, that the courts should not use the iterative process as a balancing test.
Since the Court of Appeal decided to leave the literal approach and apply a contextual
approach to the contract, it may also be said that the Court of Appeal practically
corrected the meaning of the written text.216
Although it seems understandable for any
court wanting to construe an agreement to the best of their capabilities, after
construction by the Court of Appeal the contract between E.ON and MTH had a
different meaning from that which it appears to have on its face.217
No contractual
effect was given to the two provisions ensuring a ‘service life’ of 20 years. Instead of
relying solely on the iterative process to discover the parties’ expectations, it would
have been a worthwhile exercise in this particular matter, being on the cusp of
rectification, to include pre-contractual communications. As suggested before, it could
conceivably be the case that the two provisions ensuring a ‘service life’ were
purposely incorporated by the drafters on behalf of E.ON and should not have been
dismissed as inconsistent by the Court of Appeal.
Finally, the Court of Appeal’s view on the topic of appropriate testing and
experimental verification by MTH was very decisive, as the contract explicitly called
for test data. Neither the High Court nor the Court of Appeal’s judgment, surprisingly,
addresses the case law concerning ‘novel design’ (as discussed in section 2.5. of this
dissertation). It would have been expected in a case like Robin Rigg to underline the
general necessity of extra safety measures and appropriate testing.
215
D’Aeth, ‘Design defects in offshore wind turbines’ (n 209) 2.
216
See Buxton, ‘”Construction” and Rectification after Chartbrook’ (n 151).
217
See section 4.2. Boundaries of Interpretation.

47
5. Conclusion
Overall, this dissertation has brought together two important legal issues through a
comparative analysis of Canadian, US and English case law. The possibility has been
identified of construction contracts containing double obligations with regard to design
liability. Imposing ‘reasonable skill and care’ and ‘fitness for purpose’ (suitability) duties
upon contractors via the instrument of express terms, has been acknowledged as ‘common
practice’ by legal authorities. Such double obligations are considered to be mutually
compatible.218
While design and build contractors are believed to carry the responsibility for design
defects by way of an implied suitability obligation,219
it will depend on the employer’s
actual reliance on the contractor’s skill and judgment whether a strict duty to accomplish a
certain outcome can be expected.220
If reliance is absent, and there are no express terms
imposing ‘fitness for purpose’ upon the contractor, the contractor’s obligation will consist
of ‘reasonable skill and care’ (the default position of the ordinary, competent
professional). Therefore, the general consensus in the case law is that, without any express
or implied warranties, defects caused by an employer’s specification are not the
responsibility of the contractor.221
Due to their overriding qualities and capability to act as freestanding warranties of
suitability,222
express terms are a preferred tool for employers and are used extensively in
construction contracts. Contractors could, for instance, expressly be obliged to use ‘good
industry practice’ during the execution of the works, while having to guarantee that the
works as a whole will be fit for the intended purpose. The Robin Rigg223
case is a perfect
example of that.
Although the intention of the contracting parties might have been to insert certain express
218
See Edwards-Stuart J in the Robin Rigg case (n 170).
219
See IBA case (n 57).
220
See Marshall, ‘Design liability in English law’ (n 35).
221
See Little (n 71).
222
See Scheibel, ‘Understanding Construction Warranties in Canada’ (n 93).
223

48
suitability obligations into the agreement, that intention may not necessarily be
acknowledged by the courts when considering the precise extent of the duties. In that
respect a pattern has been identified from the case law in relation to contractual
interpretation; whenever the courts allow themselves to interpret the contract beyond the
plain language of the contract, the chance of express terms being acknowledged as
freestanding warranties of suitability appears to decrease. As a result, the contextual
approach, which generally seems to have the benefit of serving the parties and their
expectations,224
regularly causes courts to decide that the contract as a whole is
inconsistent. This would then lead to a judgment on the basis of which no contractual
effect is given to the express suitability provisions, as was the case in Robin Rigg.
Despite the fact that the principles of contractual interpretation (‘Hoffmann Principles’)
clearly emphasise the ‘primacy of the language’, they have not been able to clarify under
which circumstances courts should interpret the contract beyond the plain language. In
theory courts should at least respect unambiguous and clear language, whether or not the
outcome is commercially disadvantageous to one of the parties.225
In practice, however,
courts could deviate when an over-literal interpretation may distort or frustrate the
commercial purpose.226
There even seems to be some confusion as to the proper
application of the iterative process, as mentioned by Lord Mance in Re Sigma.227
Since the courts’ choice between either a literal or a contextual approach affects the
mutual compatibility of double obligations in construction contracts, it is of the utmost
importance that the Supreme Court Justices take a unified stance as to what extent the
literal approach should be followed. If the Justices were to favour a literal approach unless
the words are obviously mistaken/clearly wrong, then this dissertation argues that the
judgment of the Court of Appeal in Robin Rigg should be overturned. Without sufficient
clarity it will stay uncertain for practitioners, more importantly drafters, as well as for
contracting parties themselves whether their express suitability provisions will hold in
court.
224
See Golden and Thomas, ‘The Spearin Doctrine’ (n 114).
225
See Sugarman (n 138) and Peel (ed) (n 139).
226
227

49
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3) <http://www.un.org/sustainabledevelopment/cop21/> accessed 21 July 2016

52
TABLES OF STATUTES AND CASES
Table of Statutes
Sale and Supply of Goods Act 1994
Sale of Goods Act 1979, s 14
Supply of Goods and Services Act 1982, s 4 and 13
Table of Cases
UK
Antaios Cia Naviera SA v Salen Rederierna AD (The Antaios) [1985] AC 191 (HL)
Arnold v Britton [2015] UKSC 36; [2015] AC 1619
BCCI v Ali [2001] UKHL 8; [2002] 1 AC 251
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 (QB)
Chartbrook Ltd v Persimmon Ltd [2009] UKHL 38; [2009] 1 AC 1101
Eckersley & Others v Binnie & Partners & Others [1988] 18 Con LR 1 (CA)
G.H. Myers & Co v Brent Cross Service Co [1934] 1 KB 46 (KB)
Greaves & Co (Contractors) Ltd v Baynham Meikle & Partners [1975] 1 WLR 1095 (CA)
Holland Hannen and Cubitts (Northern) Ltd v Welsh Health Technical Services Organisation
[1985] 35 BLR 1 (CA)
Homburg Houtimport BV v Agrosin Private Ltd (The Starsin) [2003] UKHL 12; [2004] 1 AC
715

53
Independent Broadcasting Authority v EMI Electronics Ltd and BICC Construction Ltd
[1980] 14 BLR 1 (HL)
Investors Compensation Scheme v West Bromwich Building Society [1998] 1 WLR 896 (HL)
Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749 (HL)
Marley v Rawlings [2014] UKSC 2; [2014] 2 WLR 213
MT Højgaard A/S v E.ON Climate and Renewables UK Robin Rigg East Ltd, E.ON Climate
and Renewables UK Robin Rigg West Ltd [2014] EWHC 1088 (TCC), [2014] BLR 450;
[2015] EWCA Civ 407, [2015] BLR 431
Napier Park European Credit Opportunities Fund Ltd v Harbourmaster Pro-Rata CLO BV
[2014] EWCA Civ 984
Rainy Sky SA v Kookmin Bank [2011] UKSC 50; [2011] 1 WLR 2900
Re Sigma Finance Corporation (In Administration) [2009] UKSC 2; [2010] 1 ALL ER 571
Sans Souci Ltd v VRL Services Ltd [2012] UKPC 6
Sugarman v CJS Investments LLP [2014] EWCA Civ 1239; [2015] 1 BCLC 1
Trebor Bassett Holdings Ltd v ADT Fire and Security plc [2011] EWHC 1936 (TCC), [2011]
BLR 661; [2012] EWCA Civ 1158, [2012] BLR 441
Try Build Ltd v Invicta Leisure Tennis Ltd [1997] 71 Con LR 140 (QB)
Young & Marten [1969] 1 AC 454 (HL)
Canada
BG Checo v BC Hydro [1993] 1 SCR 12 (SC)

54
Greater Vancouver Water District v North American Pipe & Steel Ltd and Moody
International Ltd [2012] CarswellBC 2410, [2012] BCCA 337, [2012] 11 WWR 271, [2012]
BCWLD 6299, 13 CLR (4th) 176 (CA)
Little v North Columbia Construction Ltd [2015] CarswellBC 3817, [2015] BCSC 2441,
[2016] BCWLD 1373, 262 ACWS (3d) 355 (SC)
The Steel Company of Canada Ltd v Willand Management Ltd [1966] CarswellOnt 62, [1966]
1 SCR 746, 58 DLR (2d) 595 (SC)
US
AAB Joint Venture v United States, [2007] 75 Fed. Cl. 414
Blake Construction Company v United States, [1993] 987 F.2d 743
Greenbriar Digging Service Limited Partnership v South Central Water Association Inc., No.
3:07CV601 DPJ-JCS, [2009] WL812241 (S.D. Miss. Mar. 26, 2009)
Helene Curtis Industries Inc v United States, [1963] 312 F.2d 774
MacKnight Flintic Stone v City of New York [1899] 160 NY 12
United States v Spearin, [1918] 248 U.S. 132 (SC)
Other
Bevan Investments Ltd v Blackhall and Struthers [1979] 11 BLR 78; [1978] 2 NZLR 97 (CA)

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