Tekdata Interconnections Ltd v Amphenol Ltd [2009] EWCA Civ 1209

In a commercial 'battle of the forms', a buyer's purchase order was met by the seller's acknowledgement containing different terms. The Court of Appeal upheld the traditional 'last shot' doctrine, finding the contract was concluded on the seller's terms, prioritising certainty.

Facts

Tekdata Interconnections Ltd (the buyer) manufactured engine control systems for Rolls-Royce and purchased connectors from Amphenol Ltd (the seller). The parties had a long-standing commercial relationship. The process involved Tekdata submitting a purchase order which stated that the contract would be on its own terms and conditions. In response, Amphenol would send an acknowledgement which stated that the contract was governed by its own, conflicting, terms. Tekdata would then accept delivery of the goods. When some connectors were delivered late and found to be unsuitable, a dispute arose as to which party’s terms governed the contract, as they contained different provisions regarding liability.

Issues

The primary legal issue was determining which set of terms and conditions governed the contract in this ‘battle of the forms’ scenario. The court had to decide whether the traditional offer and acceptance analysis (the ‘last shot’ rule) should apply, or whether the parties’ long course of dealing demonstrated an objective intention to be bound by the buyer’s (Tekdata’s) terms, as the judge at first instance had held.

Judgment

The Court of Appeal unanimously allowed the appeal, overturning the High Court’s decision and holding that the contract was made on Amphenol’s terms. Lord Justice Longmore gave the leading judgment, strongly reaffirming the orthodox approach to contract formation.

The Traditional Analysis

Longmore LJ emphasised the importance of certainty in commercial transactions, which the traditional offer and acceptance model provides. The general rule is that the ‘last shot’ wins the battle of the forms; the party who puts forward the latest terms which are not explicitly rejected by the other party is deemed to have their terms accepted by the conduct of the other party (e.g., by taking delivery of the goods). He stated:

In a battle of the forms case, the general rule is that the traditional offer and acceptance analysis is to be applied… That means that the last shot wins.

Displacing the Traditional Rule

While acknowledging that this rule was not absolute, Longmore LJ set a high bar for displacing it. He reasoned that it would require strong evidence to show that the parties’ common intention was for different terms to prevail. He explained:

…it will always be difficult to displace the traditional analysis, in a battle of the forms case, unless it can be said that there was a clear course of dealing between the parties… It is not enough that the other party has been making a contract on his own terms for some time, if the counter-offer is clear.

On the facts, the court found that Amphenol’s consistent practice of sending an acknowledgement with its own terms constituted a counter-offer which Tekdata accepted by conduct when it took delivery of the connectors. The history of their relationship was not sufficient to override this final contractual document. Lords Justice Dyson and Pill delivered concurring judgments, reinforcing the decision’s emphasis on legal certainty.

Implications

The case is a significant modern authority that reaffirms the ‘last shot’ doctrine established in cases like Butler Machine Tool Co v Ex-Cell-O Corp (England) Ltd. It clarifies that the traditional offer-and-acceptance analysis remains the default approach to resolving a ‘battle of the forms’. The judgment serves as a stark reminder to commercial entities that if they proceed with a transaction after receiving a counter-offer, they are likely to be bound by the terms of that counter-offer. To avoid this, a party must explicitly reject the counter-offer and insist on its own terms before performance. The decision prioritises certainty and predictability in commercial law over a more flexible, fact-based assessment of the parties’ relationship.

Verdict: The appeal was allowed. The contract was held to have been made on the terms and conditions of Amphenol Ltd (the seller).

Source: Tekdata Interconnections Ltd v Amphenol Ltd [2009] EWCA Civ 1209