UK: Net Contribution Clauses: Are They Unreasonable And/Or Unfair?

Last Updated: 25 April 2014
Article by Martin Ewen

In the case of West & West v Ian Finlay & Associates (a firm), [2014] EWCA Civ 316, the Court of Appeal had to review the effect of a net contribution clause.

The Facts

In June 2005 Mr and Mrs West ('the Wests') purchased a property in Putney, London for £1.7 million. The Wests planned major refurbishment works engaged Ian Finlay & Associates ('IFA') as architect to redesign the property and administer the building contract.

IFA's terms of engagement included a net contribution clause ('the NCC') in the following terms:

"Our liability for loss or damage will be limited to the amount that is reasonable for us to pay in relation to the contractual responsibilities of other consultants, contractors and specialists appointed by you."

The Wests engaged Maurice Armour (Contracts) Limited ('Armour') to carry out the building works and Armour took possession on 19 June 2007.

Following completion of the works during May 2007 the Wests moved in but within a month significant defects were discovered. In order to facilitate the extensive remedial works required the Wests vacated the property and did not return until June 2009.

Armour became insolvent during April 2010.

In September 2011 the Wests issued court proceedings against IFA alleging negligence due to IFA's failure to notice or remedy the various defects. The Wests claimed the remedial works costs and damages for distress and inconvenience.

IFA denied liability and alternatively relied upon the NCC contending that any award for damages should be reduced to take into account the liability of Armour.

In a first instance decision dated 16 April 2013 Edwards-Stuart J held that IFA was liable and awarded the Wests over £800k including interest and damages for distress. The judge found that the NCC did not cover any potential liability on the part of Armour. Having decided that the wording of the clause was uncertain per se the Judge applied the Unfair Terms in Consumer Contracts Regulations 1999 ('UTCCR'), to give the clause the meaning most favourable to the Wests as the consumer i.e. that the words "other consultants, contractors and specialists" excluded the main contractor.

IFA appealed. In a Respondent's Notice the Wests submitted that contrary to regulations 5 – 8 of the UTCCR the NCC was unfair as it gave rise to a significant imbalance in the parties' rights that was detrimental to their interests and had not been drawn to their attention. The Wests also submitted that NCC was unreasonable and as such, contrary to section 2 of the Unfair Contract Terms Act 1977 ('UCTA').

The Issues

  1. Did the NCC operate to limit IFA's liability to the Wests?
  2. Was the inclusion of the NCC unfair under the UTCCR?
  3. Was the NCC unreasonable under UCTA?

The Decision

The Court of Appeal considered the normal meaning of the words used in the NCC and found there was no ambiguity so that the references within the NCC to the "contractual responsibilities of other consultants, contractors and specialists" meant any such persons appointed by the Wests, including the main contractor.

On the second issue the Court of Appeal decided that the inclusion of the NCC was not unfair. Whilst it would have been preferable for IFA to have specifically drawn the NCC to the Wests' attention the Court concluded that this was not enough to trigger Regulation 5 of the UTCCR given the overall circumstances including that: (i) the NCC did cause an imbalance but not a significant imbalance between the parties, contrary to the requirement of good faith; and, (ii) the parties were in an equal bargaining position. On similar grounds the Court of Appeal found that the NCC fulfilled the requirement of reasonableness within the meaning of UCTA.

The Court of Appeal remitted the case back to the original judge for the task of carrying out an assessment of liability as between Armour and IFA.


Bearing in mind that the Court of Appeal thought that the wording of the NCC was "crystal clear" it is perhaps difficult to understand how the court at first instance could have considered the clause to be ambiguous. However, it was accepted that the wording of the NCC could have been drafted more clearly. The Court of Appeal noted that the NCC did not specifically highlight that the effect of the clause was to shift the risk of insolvency of other contractors from IFA to the Wests. IFA's case may have been helped by Court of Appeal's observation that the net contribution clause in the RIBA's SFA/99 standard form similarly failed to expressly draw this risk to the reader's attention.

The clear lesson to be drawn from this decision is that construction professionals who seek to include net contribution clause in contracts with consumers should flag up the clause in advance and explain its effect in order to avoid complications with clients who may subsequently seek to rely upon their own commercial naivety.

This article is one of a series contributed by Fenwick Elliott to the Building website. To see further articles in this series please go to

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Martin Ewen
Similar Articles
Relevancy Powered by MondaqAI
Browne Jacobson
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Browne Jacobson
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions