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Baycourt wins trial on “last shot/battle of the forms”

In a decision handed down on 28 October 2022, Senior Justice Charles ruled to dismissed the action commenced by AJ Telecom against the Bahamas Telecommunications Company Limited.

The case and trial centered on the “standard” terms of AJ Telecom and the purchase orders issued by BTC and which formed the basis of the terms agreed between the parties.   The Court, in its Judgment, found that BTC’s purchase orders were the agreed terms because they were the “last shot”. Senior Justice Charles held (in part):

[37] The general rule has long been that the battle of the forms will often be won by the party who had the “last shot” in the contractual negotiations. That is the party who put forward their terms and conditions which were not expressly rejected by the recipient. Usually, a party that was the last to submit their terms and conditions could rely on some degree of comfort knowing that their terms and conditions are likely to be the ones that would apply. However, Panasonic has thrown some uncertainty on the situation because the court disagreed with TRW and concluded that even though it had fired the ‘last shot’, the manner in which Panasonic had fired the ‘first shot’ (and the subsequent actions of TRW) meant that the parties have effectively concluded the contract after the ‘first shot’ was fired, thereby creating a barrier against any further shots being fired by TRW. In setting aside the application and declaring that the German courts had exclusive jurisdiction over the dispute, the court found that the signing of the Document by TRW was a determining factor. Coulson LJ put it this way:
“[TRW’s] signature was the only time that one party expressly signed something which referred to the other side’s terms and conditions. It was the only overt sign of an agreement. To continue the warfare analogy commonly used in these cases, it was the only occasion when one side walked across no-man’s land, and fraternised with the enemy.”

[53] The general rule was that the traditional offer and acceptance analysis applied in ‘the battle of the forms’ cases, unless the documents passing between the parties and their conduct showed that their common intention was that some other terms and conditions were intended to prevail. In applying the traditional concepts of offer and acceptance to the facts of the present case, it is my firm view that BTC fired the ‘last shot’. BTC’s terms and conditions were in play and unanswered at the time that the goods were delivered.

BTC was represented by Raynard Rigby KC and Christopher Francis of Baycourt Chambers.…/033-JUDGMENT-AJ-TELECOM-BAHAMAS-LIMITED-v-THE-BAHAMAS-TELECOMMUNICATIONS-COMPANY-LTD-BREACH-OF-CONTRACT.pdf



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