Why IT contractors mustn’t ignore ‘terms & conditions on request’

“Terms and conditions available on request.” Can an agency or client to use this six-word phrase, or a substitute like ‘Ts and Cs upon request’, in their contract with you, without the contract stating them in full? Quite possibly – according to the Court of Appeal in Rooney & Anor v CSE Bournemouth Ltd 2010.

The case concerned maintenance being carried out on aircraft owned by the claimants. Before carrying out work the defendants would produce a “Work Order” incorporating the words “terms and conditions available on request” at the bottom of the page. They would not start work until the Work Order had been signed. This might sound a tad devious on the part of the maintenance contractor, but the aircraft owner could have (but didn’t) request or read the Ts and Cs.

This is not to suggest that IT contractors should use the phrase “terms and conditions available on request” in order to sneak in their own terms. A professional consultant or contractor who wants to limit their liability probably wouldn’t want to rely on just six words for protection anyway (and there is a good chance that this would not work). But anyone asked to accept a contract (with an agency or direct with an employer) that comes across the phrase should consider NOT signing, until the full terms and conditions have been provided, and read.

That’s because the Court of Appeal (CoA) ruled in favour of the defendant, the maintenance contractor, who made use of the phrase. However the court’s judgement only overturns a strike out claim – meaning that the CoA did not say the terms and conditions would necessarily work, but suggested that they might – even though they hadn’t been read.  Not requesting or reading terms might mean that you are waiting a long time for payment or find that your contract is terminated at shorter notice than you’d expect.

So this is not an alternative way to incorporate your terms and conditions, rather this case really serves as a reminder not to sign up to something you haven’t read – it could still be used against you!

Comment by Richard Nicholas, an IT lawyer with Browne Jacobson LLP (with offices in London, Birmingham and Nottingham)

Friday 11th Feb 2011
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