The High Court’s recent decision in John Sisk and Son Limited v Capital & Centric (Rose) Limited [2025] EWHC 594 (TCC) contains important lessons for parties and their advisors on incorporating documents into a contract.

Background 

The contractor, John Sisk and Son Limited (Sisk), sought a declaration from the Court regarding the proper meaning of the terms of a JCT 2016 Design and Build contract (the Contract) relating to risk allocation. 

The underlying dispute concerned who was contractually responsible for the risks associated with existing structures on site. While the Contract provided that Sisk would be responsible for all risk in relation to the existing site, this was expressed to be subject to an important carve out – namely, the “Clarifications” contained in an appendix to the Employer’s Requirements. 

The Contract defined “Clarifications” as: “The clarifications headed ‘Contract Clarifications’ contained within Volume 2, Appendix 2.9 of the Employer’s Requirements”. 

The Contents/Contract Register within the Contract (which contained a comprehensive list of the contract documents) identified that Appendix 2.9 was a “Clarifications Schedule” described as the “Clarifications Document for inclusion into Contract”.

As commonly happens, there was both a physical and an electronic copy of the Contract. In this case, however, they were not identical:

• the electronic copy included documents which were apparently too extensive to be attached to the hard copy.  The electronic version contained an Excel document titled “Clarification Document for Contract Inclusion” containing two worksheets: one titled “contract clarifications”, and the other “tender submission clarifications”; and
• the physical copy contained a printed and initialled copy of only one of the two worksheets (the one titled contract clarifications). 

The issue for the Court was whether the “tender submission clarifications” – the second worksheet, which was included in the electronic copy but was not in the physical copy – fell within the Contract definition of “Clarifications”.

This was an important point for the parties. If the “tender submission clarifications” worksheet was part of the “Clarifications” in the Contract, then Sisk would be responsible for the risks associated with existing structures on site. If it was not, then Capital & Centric, the employer, would be responsible.

Decision

The High Court held that the “tender submission clarifications” worksheet – included in the electronic copy of the Contract only – did not in fact fall within the Contract definition of “Clarifications”.  

Accordingly, the employer was responsible for the risk associated with existing structures on site.

While contractual interpretation is always a fact-specific exercise, the judgment confirms the following points of broader application (all of which arose in the case).

• The clear words of the contract are paramount. On the facts of this case, there was no reference to the "tender submission clarifications” worksheet, either in the Contract definition of “Clarifications” or in the Contents/Contract Register.
• Context is key:
  • words should be given their “normal or natural meaning”;
  • when considering the proper interpretation of a contract, regard must be had to the contract as a whole. In this instance, that entailed an analysis of other relevant contractual clarifications, as well as the insurance, novation and warranty provisions; and
  • one of the factors that the Court took into account – even if it was not necessarily determinative – was that the “tender submission clarifications” worksheet did not appear in the physical copy of the Contract.
• Evidence of pre-contractual negotiations is not generally relevant to interpreting contracts. Such evidence is only relevant to (a) establish that a fact was known to both parties; or (b) clarify the general object of the contract.

Key takeaways 

The judgment confirms the importance of taking care when incorporating documents into a contract. Parties should:

• ensure consistency of contract wording across contract documents; 
• carefully review the contents of contract documents; 
• take particular care if the parties are proposing to include tender clarifications as part of their contract (given that tender clarifications are not necessarily drafted with this purpose in mind, and so can sometimes be less precise than other contract documents); 
• check that electronic file names correspond to contractual descriptions or definitions; and
• consider describing in their contract an order of precedence of contract documents, in the event that those documents contain inconsistent or contradictory information.