In Cottonex v Patriot, Hamblen J considered whether "invoicing back" provisions were incorporated into a contract for the sale of cotton. He held that they were not, and in so doing allowed an appeal brought by Cottonex under s.69 of the Arbitration Act 1996. The judgment deals with the approach to be taken to the question of what provisions are incorporated by reference into a contract. It also deals with the degree which "commercial good sense" is relevant to the construction of a contract. The judgment also considers whether a question of construction involving factual matrix remains a pure question of law (or is a question of mixed fact and law); the judge found that the former was the correct analysis. In addition, the judge considered the circumstances in which additional materials and fresh arguments may be relied upon by a respondent.
Charles Kimmins QC acted for the successful appellant (instructed by Holman Fenwick Willan LLP)