Kitchen sink drafting style under scrutiny (2015) 26 7 Cons.Law 20 [Archived]
Kitchen sink drafting style under scrutiny (2015) 26 7 Cons.Law 20 [Archived]

The following Construction guidance note provides comprehensive and up to date legal information covering:

  • Kitchen sink drafting style under scrutiny (2015) 26 7 Cons.Law 20 [Archived]
  • Facts and contract conditions
  • First instance decision
  • Court of Appeal analysis
  • Conflicting design standards
  • Works description v performance criteria
  • Conclusion

This article appears as originally published in Construction Law on 1 September 2015 and is not maintained.

Michael Sergeant of Holman Fenwick Willan considers the recent Court of Appeal case of Hojgaard v E.ON and the challenges it presents for those drafting and negotiating construction contracts.

Key points:

  1. The Court of Appeal emphasises the importance of finding the parties’ common intention in the contract and rejecting inconsistent wording

  2. Performance specifications buried deep within technical appendices to a contract may be considered inconsistent with other provisions

  3. Contract drafters need to ensure that key performance requirements are given prominence

  4. Lawyers should be wary about adopting a ‘kitchen sink’ approach to putting together contractual provisions

The recent Court of Appeal judgment in MT Hojgaard v E.ON Climate and Renewables UK Robin Rigg [2015] EWCA Civ 407 concerns one of the most common challenges construction lawyers face: how to make sense of a contract containing a myriad of inconsistent technical and design obligations. The case will also be of considerable interest to front end lawyers because it highlights the dangers of adopting a ‘kitchen sink’ approach to contract drafting, whereby everything that could potentially be relevant is thrown into the document.

Facts and contract conditions

Hojgaard was employed by E.ON to design and build the foundations for a wind farm situated off the UK coast. The foundations consisted of two elements – a monopile and a transition piece, which would in turn connect to a tower, supporting the turbine and blades which were constructed and installed by a different contractor.

The monopile and transition piece were to be held together by a grouted connection which was based on