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Supreme Court of Ireland Decisions
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Cite as:  IESC 74
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THE SUPREME COURT
RECORD NO. 384/2011
JAMES ELLIOTT CONSTRUCTION LIMITED
IRISH ASPHALT LIMITED
Ruling of the Court delivered on the 2nd day of December, 2014
2. Elliott Construction subsequently initiated proceedings against the defendant/appellant, Irish Asphalt Limited (“Irish Asphalt”), claiming that the infill (Clause 804 infill) provided by it, and placed underneath the floor in the building had caused “pyrite heave” which was the cause of the damage to the building. It was submitted that the Clause 804 infill provided to it contained framboidal pyrite, which is now known to expand with moisture. If used as infill below solid flooring, the effect of even relatively small amounts of movement can be dramatic and drastic. Irish Asphalt supplied this infill from its own quarry for what, in the context of this case, was the small sum of €25,000 plus VAT. Irish Asphalt, in turn, argued in the High Court that the allegation of pyrite heave was an unproven theory and several alternative arguments were submitted to the Court. On the 25th May 2011 the High Court found that the damage to the building had been caused by pyrite heave and thus found against Irish Asphalt. Irish Asphalt has appealed that decision.
3. In this appeal, Irish Asphalt no longer contests that pyrite heave caused the damage to the building as found by the High Court. Accordingly, much of what was in contention in the High Court is no longer directly relevant in this appeal and it is not necessary to consider the very complex issues of science and fact which are set out in the comprehensive High Court Judgment in any extensive detail. However, it is necessary to outline these matters briefly to facilitate a full understanding of this appeal. The matter to be decided in this appeal is essentially, which company is responsible in law for the costs of the remediation carried out by Elliott Construction. Is it to be Elliott Construction, which purchased the Clause 804 infill, or is to be Irish Asphalt, which provided the product?
4. This judgment will consider:
b. The issue of implied terms under the Sale of Goods and Supply of Services Act 1980 (“the 1980 Act”);
c. Whether the contract in question contains a limitation of liability clause; and
d. Issues which arise under European Union law.
Pyrite exists in different forms, namely massive (chemically stable) and “framboidal” (chemically unstable). The framboidal form is characterized by an agglomeration of very small cubic crystals (not visible to the naked eye) with a very large specific surface. In some conditions, this form of pyrite can oxidize in the presence of water and react with other minerals present in the same rock to form gypsum. Gypsum, when it forms, occupies a much greater volume than pyrite, causing swelling of the granular backfill. The swelling produces cracking and causes concrete floor slabs to heave. In some cases, especially in garages, the foundation walls may also crack and be displaced outwards.
The chemical solutions formed during pyrite oxidation can be absorbed by the concrete, causing the concrete floor slab to sulfatize and heave. The swelling thus has two constituent elements, namely swelling of the aggregate and intrinsic swelling of the concrete slab.
This chemical reaction is generally slow, and it takes between 10 and 15 years after the building is constructed before it is visible to the occupants. Slab displacement levels vary, but can be as high as 5 mm per year.
Most aggregates used as underfloor backfill contain pyrite and other sulphurs, but a very large percentage of buildings will never exhibit symptoms of pyrite-related problems. This is because pyrite found in hard rock with low clay mineral contents does not oxidize and the materials remain stable”.
The High Court Proceedings
9. The contract between Elliott Construction and Ballymun Regeneration for the construction of the building, to which Irish Asphalt was, of course, not a party, was contained in several documents. The High Court Judge noted that these documents were “in some potentially important respects, potentially a source of confusion” (para. 25). A series of specifications made up this documentation such as the engineering specification and the general specification of the architect. These specifications included drawings and Patrick Elliott, the principle in Elliott Construction, and Mr Martin Hannay, the foreman, laid emphasis in their evidence in the High Court on the primacy of these drawings but also emphasised the importance given to the instructions of the engineer, and occasionally the architect, on site. These instructions were sometimes noted by Mr Hannay on the contract documents but sometimes the oral directions were not recorded. Irish Asphalt argued that this was a breach of contract because according to the engineering specification, if any discrepancies were found between the documents, the contractors were supposed to inform the architect and a more formal process should have ensued. The trial judge found that Mr Elliott and Mr Hannay were correct in their approach to the primacy of the drawings over the written contract clauses and that they had consulted the engineers and architects on site as appropriate.
Specification of Clause 804
The European and Irish Standard
12. Standards are referred to in the law of the EU in two ways relevant to the present proceedings. Under Council Directive 89/106/EEC (21st December 1988) on the approximation of laws, regulations and administrative provisions of the Member States relating to construction products (“the Construction Products Directive”), the European Commission may issue a mandate to CEN to produce a standard in a particular area. Furthermore, Directive 98/34/EC of the European Parliament and the Council (22nd June 1998) laying down a procedure for the provision of information in the field of technical standards and regulations (“the Technical Standards Directive”), as amended by Directive 98/48/EC of the European Parliament and of the Council (20th July 1998) amending Directive 98/34/EC laying down a procedure for the provision of information in the field of technical standards and regulations, imposes certain obligations on Member States in respect of notification of national standards, and observing a standstill period when a European standard is being adopted. The impact of these Directives will be considered later in this judgment. For present purposes it is sufficient to observe that Elliot Construction claimed, and the High Court agreed, that the terms of standard I.S. EN13242:2002 were incorporated into the contract between the parties hereto by the reference to Clause 804, and that accordingly, the product supplied had to conform to that standard.
Breach of the Standard
14. The European Standard adopted in Ireland contains or refers to a number of tests to which aggregate of this nature should be subjected. Much of the findings both of alleged breach of the Standard, and the more general findings of breach of the implied terms of merchantability and fitness for purpose, were based on the evidence given in relation to these tests. It is worth noting at the outset that the trial judge strongly preferred Elliott Construction’s expert evidence as to causation. He concluded at para. 267:
15. The findings of the High Court on the tests can be briefly summarised. The Court found that that the material taken from the Ballymun building and tested in 2009 failed to meet the standard in respect of the Los Angeles abrasion test (para. 157 of the High Court Judgment), the magnesium sulphate soundness test (para. 158) the liquid limits test (para. 159) and the water absorption test (para. 160). The judge also quoted the written opinion of Mr Lloyd Twomey, whose evidence he accepted, at para. 162:
• 97% of Bay Lane aggregate tested is outside the Clause 804 grading curve typically at the ‘fines’ end indicating an excess of fines.
• 100% of Bay Lane aggregate tested is in excess of the specified liquid limit of 21 ranging up to 41%, and in some cases having a plastic limit measured up to 28% (Clause 804 should be non-plastic). This suggests that the fines present are behaving in plastic manner and suggests that the source material is of poor quality, such as a mud stone. A material with excessive plastic clay materials will have low strength, will be sensitive to moisture and will reduce the cohesion and shear strength of the aggregate.
• 87% of the Bay Lane aggregate tested had LA abrasion test values in excess of the specified limit of 30. This suggests that the material is weak, has low abrasion resistance and is more prone to degradation, relative to Clause 804 aggregate.
• 100% of the Bay Lane samples has 10% fines value below the SR21 equivalent requirement of 130 kN with the maximum value achieved of 65kN. This suggests that the material is weak and is prone to physical breakdown, in comparison to the Clause 804 aggregate.
• 47% of the Bay Lane aggregate tested for flakiness index, had values in excess of the specified limit of 35. This suggests that the aggregate has a platy habit (i.e. flat and thin) indicative of a laminated or closely bedded source material. Flaky aggregate physically has lower strength than blocky aggregate and typically does not compact into as dense a matrix as blocky aggregate will.
• 100% of the Bay Lane aggregate tested for magnesium sulphate soundness test has values in excess of the specified limit of 25%, with the maximum value measured of 76%. This test simulates the ability of an aggregate to resist weathering. This test is also related to the water absorption test, where an aggregate with high water absorption value tends to have a low soundness.
• 93% of the Bay Lane aggregate tested for water absorption had valued in excess of the specified value of 2% indicating that air and moisture can penetrate into the aggregate. Strong aggregate tends to have low water absorption values below 1%.
While the above tests are relevant to the performance of the material as an aggregate, they are also relevant to the ability of the material to weather and to resist expansive forces. The material is shown to allow moisture and air to penetrate into the body of the aggregate. This means that moisture can attack any minerals contained within the aggregate, such as pyrite and cause it to break down.
The material is shown to be flaky, indicative of a laminated/closely bedded fine-grained structure within aggregate. This means that the aggregate is likely to have anisotropic strength and potential weaker those within the fragments.
The material is shown to have poor strength and durability, which means that one expansive forces begin to exert on the material and once weathering begins, the material is more likely to break down.
The material is shown to have a low soundness and resistance to weathering processes, which means it is susceptible to breaking down and is unlikely to be able to resist expansive forces.
All the above indicates that the material supplied to the Ballymun Youth Centre from Bay Lane quarry was of poor quality, could not be classified as Clause 804 is susceptible to break down by pyrite oxidation and is unlikely to be unable to resist expansive forces within the aggregate’.”
20. The High Court Judge held that the contract between Elliot Construction and Irish Asphalt contained terms of merchantability and fitness for purpose implied by ss. 14(2) and 14(4) of the Sale of Goods Act 1893 (“the 1893 Act”) as inserted by s. 10 of the 1980 Act. These terms, he considered, required that the Clause 804 supplied should be inert, strong and durable (para. 41). It was found that these terms had been breached, relying on the evidence already set out in respect of the findings of breach of the Standard. However the judge also made findings of breach on the basis of evidence of other tests, including swelling tests (paras. 166-176), minute scrutiny (paras. 177-209), monitoring results (paras. 216-227), and statistical analysis (paras. 228-232). Irish Asphalt challenged the expertise of the evidence of the experts who gave evidence on behalf of Elliot Construction, particularly on the issue of minute scrutiny, but as is apparent the findings of the High Court rest on a number of independent grounds and accordingly this Court does not consider it necessary to address this further.
21. The judge considered results from tests done on the samples of rock at the Bay Lane Quarry, Irish Asphalt’s quarry, between 2003 and 2005, and on infill material removed from the Ballymun building when the problems manifested themselves. He observed that it emerged eventually at the hearing that Irish Asphalt had itself done its own tests on the material removed from under the building in 2009, although, as already observed, its case is that the only admissible tests were those carried out in accordance with specified protocols at the point of supply, and at the time the aggregate was taken from the quarry. The 2009 evidence was at least in certain respects even more damning of the product. The evidence which is described hereafter and which formed the basis of the trial judge’s conclusions as to the quality of the product, is normally admissible as a matter of Irish law as to compliance with implied terms.
22. At the conclusion of his judgment the trial judge stated at para. 268:
24. Irish Asphalt sought to rebut a wide range of findings of fact made by the trial judge, which were clearly supported by weighty evidence. This attempted challenge to the High Court Judge’s findings of fact was at variance with the jurisprudence of this Court regarding findings of fact supported by evidence and inferences based thereon, and as identified in Hay v. O’Grady  1 I.R. 210 and Northern Bank Finance Corporation Ltd v. Charlton & Ors  I.R. 149. There is no doubt that there was evidence before the High Court Judge which allowed him to reach his conclusions. Arising from this, Irish Asphalt effectively abandoned its appeal insofar as it related to the issue of alternative causation, but maintained that, notwithstanding the findings of fact made, particularly the finding that the damage to the building was caused by pyritic heave, it was not liable to Elliott Construction as a matter of law both domestic and EU.
25. Irish Asphalt makes two closely related points which it is necessary to identify and analyse separately. First, it says that the evidence of the 2009 testing of the materials taken from the Civic Centre is simply nihil ad rem. It does not and cannot prove breach of the Standard. It says that in certain respects the tests were not carried out in accordance with the protocols identified in the Standard, and more importantly, were not carried out in the time indicated, namely at the time of delivery. In essence, it is contended that the Standards (and therefore the contract insomuch as it required delivery of Clause 804 conforming to those Standards), required that the material meet the relevant tests as of the date of delivery. Indeed, insomuch as the standardisation of national standards is required as part of a single market, in order to facilitate the putting on the market of products from different Member States, it might be said that the obvious point at which compliance with the Standard has to be demonstrated is precisely when the product is being placed upon the market. There was no serious contest but that Irish Asphalt’s data showed that tests had been carried out on samples of the quarry material throughout the relevant period, all of which (subject to the sulphur issue discussed above, and where Irish Asphalt had not tested for sulphur) showed compliance with the Standards, at those times. Accordingly Irish Asphalt contended that, at a minimum, resolution of this issue required a resolution of an issue of European law, namely whether compliance (or breach) of the Standards could only be established as of the point of delivery and by use of the testing protocols referred to in the Standard. Perhaps put another way, the argument was that if the Standards required that the product meet the relevant Standards at the point of delivery and then only, then to demand that they meet the tests some five or more years later, would be to impose a new standard, incompatible, with the existing European and national standard and thus, it was said, contrary to European law.
26. The second argument made by Irish Asphalt in relation to this evidence was insomuch as it related to the separate national law question of whether there was a breach of implied term as to merchantable quality and fitness for purpose. In this respect it accepted, at least tacitly, that such evidence was admissible as evidence of breach of the implied terms as indeed it was. However, it was contended firstly that there had been no breach of either implied terms as a matter of national law, or, and secondly, that if there was, such a conclusion was not permissible as a matter of EU law, or, and again at the very least, that this raised an issue which it was necessary to refer for the consideration of the Court of Justice of the European Union (“CJEU”). It is accordingly necessary to consider the domestic law issues which arise since, if Irish Asphalt is correct in these respects, the consequential issues of European law which they contend arise, are certainly reduced if not removed.
Merchantability and Fitness for Purpose
30. Decisions of the courts of other common law jurisdictions are of persuasive authority. The argument that a product is merchantable if it is shown to be fit for one purpose for which it is used is almost entirely dependent upon the decision of the Court of Appeal of England and Wales in Aswan Engineering Establishment Co. v. Lupdine Ltd & Anor  1 W.L.R. 1 (“Aswan”), and in particular, the careful analysis of Lloyd L.J. in that case. To understand the legal issue it is necessary to trace the statutory development of s. 14 of the 1893 Act, both in the UK and in Ireland. It is indeed a further complication of this argument that as a result of the statutory changes Aswan is now only of historical interest in the law of the UK and has not been further discussed or analysed in that jurisdiction, but, it is argued, correctly represents the law in Ireland.
31. The concept of statutory implied terms can be traced to the 1893 Act. Section 14 of that Act originally contained versions of the two warranties of merchantable quality and fitness for purpose which are at issue in this case, albeit in different format, and in a different order. Section 14 of the 1893 Act as originally enacted provides: -
(2) Where goods are bought by description from a seller who deals in goods of that description (whether he be the manufacturer or not), there is an implied condition that the goods shall be of merchantable quality; provided that if the buyer has examined the goods, there shall be no implied condition as regards defects which such examination ought to have revealed.”
35. The case of Henry Kendall & Sons v. William Lillico & Sons Ltd is in fact an example of a case which was difficult in this way. In this case, the plaintiff game farmers bought compounded meal from the defendant for feeding to pheasants and partridges and their chicks which they reared for stock and sale. As a result of feeding them this meal, many of the chicks died, or were stunted and unfit for breeding purposes. It was found by the trial judge that this was caused by the presence in the compounded meal of a proportion of Brazilian ground nut extraction which contained a toxic substance known as aflatoxin. The ground nut extraction had been bought from two third parties, which in turn had bought it from fourth parties who had imported it from Brazil. The case was further complicated by the fact that there were different terms and conditions between the relevant parties.
36. The plaintiff recovered damages from the defendant for an admitted breach of the implied terms under both ss. 14(1) and (2) of the 1893 Act, as it then stood. The defendant who produced the feed, in turn, sought an indemnity and damages for breach of contract from the third parties who had supplied the groundnut ingredient, alleging breaches of the same implied terms. The defendant succeeded at first instance and on appeal. In the appeal, the House of Lords held that there was a breach of the implied condition as to fitness for purpose, but it was held by a majority (Lord Pearce dissenting and Lord Wilberforce expressing no opinion) that as the judge had properly directed himself on the meaning of merchantable quality, and on his findings the ground nut extraction was not of unmerchantable quality, there was no breach of the term implied by s. 14(2) of the 1893 Act.
37. The aspect of the case dealing with merchantable quality turned on evidence that ground nut extractions were sold for inclusion in feed stuffs to cattle even when contamination of this nature was detected. On these findings, Lord Reid set out the general principle of sales by description:
39. In 1973, the law in the UK underwent a significant change. Section 3 of the Supply of Goods (Implied Terms) Act 1973 (“the 1973 Act”) amended s. 14 of the 1893 Act as follows:
(2) Where the seller sells goods in the course of a business, there is an implied condition that the goods supplied under the contract are of merchantable quality, except that there is no such condition: -
(b) if the buyer examines the goods before the contract is made, as regards defects which that examination ought to reveal.
42. To complete the development of the statutory provisions, it is necessary to observe that the Sale of Goods Act 1979 (“the 1979 Act”) in the UK reorganised the terms of s. 14, making some minor amendments, and bringing the definition of merchantable quality into s. 14 at subs. (6). It is to this Act that the later UK cases refer, although of course the main substantive changes were made in the UK in the 1973 Act. In 1980, the Oireachtas updated the 1893 Act in Irish law so that the statute law in Ireland was broadly similar to that in the UK at that time, as seen above. More specifically, the definition of merchantable quality was brought within s. 14 and placed at subs. (3), and the concept of durability was included in the definition of merchantability. However, nothing turns on that term in these proceedings. Thus, when seeking to understand the argument made on the basis of the decision in Aswan, an important starting point is that the statutory provisions in issue in these proceedings are essentially identical to those contained in the 1979 Act which was the applicable law in the UK at that time.
43. Section 1 of the Sale of Goods and Supply Act 1994 (“the 1994 Act”) in the UK effected a further significant change in replacing the concept of merchantable quality with an implied warranty of “satisfactory quality” which itself was defined as meeting a standard “that a reasonable person would regard as satisfactory, taking account of any description of the goods, the price (if relevant) and all the other relevant circumstances”. That Act also took the opportunity of amending s. 14 of the 1979 Act to include the concept of durability in the definition of satisfactory quality, but for present purposes it is also significant because it expressly defined the quality of goods as including “fitness for all the purposes for which goods of the kind in question are commonly supplied” (s. 1(2B)(a)). Finally, the Report of the Sales Law Review Group in 2011 on legislation governing the supply of goods and the supply of services, recommended the introduction of a concept of satisfactory quality in place of the warranty of merchantable quality (p. 17). From this recital, it can be concluded that insomuch as this case involves an interpretation of the statutory definition of merchantability in the 1980 Act, the terms in which that definition is couched are effectively identical to the statutory definition of merchantability in the law of the UK between 1973 and 1994. Thus, any decision of the UK courts from that period which considers the statutory definition may be of assistance when considering the Irish legislation.
44. The facts of the Aswan case were quite extreme. The plaintiff, a construction company conducting business in Kuwait, bought from the first defendant (Lupdine) a consignment of waterproofing compound in plastic pails for shipment to Kuwait. The pails had been supplied to the defendant in turn by the second defendant, Thurgar Bolle Ltd. Before the hearing, Lupdine went into liquidation and the issue became the liability, if any, of the second named defendant either in tort to the plaintiff or in contract to the first defendant. One of the issues which arose was the extent to which it could be said that the plastic pails failed the implied condition of merchantable quality, and whether the implied condition as to fitness for purpose arose.
45. The pails of waterproofing compound were shipped stacked 5-6 pails high in a container. When the container arrived at Kuwait it stood on the quayside in the sunshine. The temperature rose to 70º centigrade (150º Fahrenheit). Unsurprisingly, the pails collapsed and the water-proofing compound was lost. Importantly, the evidence was that the pails, stacked in the configuration in which they were, could still have resisted temperatures up to 52º centigrade (122º Fahrenheit) and would even survive the 70º centigrade heat if they had not have been stacked on top of each other. There was also evidence that the pails had been used for export to other parts of the world without mishap.
46. The central issue was Lupdine’s claim to be indemnified by Thurgar Bolle and that issue turned principally on the question of whether there had been a breach of the implied term as to merchantability. The claim failed both at first instance and in the Court of Appeal. At first instance, Neil J. found simply that the pails were of merchantable quality, observing that they had very nearly survived the extreme conditions created by intense heat of an enclosed container in the Gulf. The analysis in the Court of Appeal was however much more detailed. It appears to have been argued that the introduction of the word “purpose or purposes”, and in particular, the use of the plural in the 1973 Act (and re-enacted in the 1979 Act) meant that the pails were required to be fit for all the purposes for which they were sold. It was thus argued that, since they failed in Kuwait, they were not fit for at least one of the purposes for which they were sold and were not merchantable. On behalf of the supplier of the pail, Thurgar Bolle, it was argued that the statutory definition then contained in s. 14(6) of the 1979 Act made little if any change to the existing law, and the fact that the pails were manifestly generally fit for the purposes for which they were sold meant that they were of merchantable quality.
47. Lloyd L.J. conducted a careful and impressive analysis of the law of merchantability prior to the enactment of the 1973 Act. He concluded that the definition of merchantability did not alter the law as laid down in Henry Kendall & Sons v. William Lillico & Sons Ltd (also reported as Hardwick Game Farm v. Suffolk Agricultural Poultry Producers Association)  2 AC 31 (“Hardwick Game Farm”)). While accepting that the contrary argument was attractive, he concluded that the true position was that the statutory enactment of the definition of merchantability was as accurate a reproduction of the test advanced by Lord Reid in the Hardwick Game Farm case as it was possible to compress in to a single sentence. It was however necessary to explain why the plural “purposes” had been used in the statute. Lloyd L.J. took the view that this could be traced to the fact that, as pointed out in the Hardwick Game Farm case, goods of any one kind may be sold under more than one description corresponding to different qualities. He explained the significance he attributed to this in the following important passage:
49. It was frankly acknowledged that the subsequent development of the law in the UK and elsewhere, until the amendment of the statutory definition in 1994, was less clear-cut. In Rogers v. Parish (Scarborough) Ltd.  Q.B. 933 (“Rogers v. Parish”), a differently constituted Court of Appeal had to confront a similar argument in the context of a consumer contract, in that case the purchase of a Range Rover motor vehicle. The plaintiffs purchased a Range Rover which was sold as new but proved to be defective and another Range Rover was substituted for it. On delivery, however, the engine, gear box and bodywork of the replacement were substantially defective, and oil seals at vital junctions were unsound, causing significant quantities of oil to escape. There were a number of unsuccessful attempts made by the garage to rectify the defects. At the end of a six month period, the engine was still misfiring, excessive noise was being emitted from the gear box, substantial defects remained in the body work, and the plaintiffs rejected the vehicle. The plaintiffs then brought an action for a declaration that there had been a breach of the implied condition as to merchantable quality, and that they had been entitled to repudiate the contract. The judge at first instance found that since none of the defects had rendered the vehicle unroadworthy, unstable or unfit, it was reasonably fit for its purpose which was that of driving, and it was accordingly of merchantable quality.
50. Perhaps unsurprisingly, the decision was overturned on appeal. It is one of the additional difficulties of this line of authority that Aswan was not among the authorities cited to the Court of Appeal, possibly because it had only recently been decided, and may have not have been reported at that time. However, the arguments for the unsuccessful defendant in Rogers v. Parish were almost precisely those which had succeeded in Aswan. At p. 937, counsel is recorded as relying on the decision of the House of Lords in the Hardwick Game Farm case for the proposition that the vehicle, being commercially saleable and useable for a secondary purpose, albeit at a lower price than the plaintiffs had paid, was not therefore unmerchantable, and the plaintiffs were entitled to no more than the difference between the price they paid and the value at which the vehicles were commercially saleable. It was also argued that the 1973 Act, while inserting a statutory definition of merchantability, did no more than codify the law as the House of Lords had stated it in Hardwick Game Farm, relying in that regard on the observations of Lord Denning in Cehave N.V. v. Bremer Handelsgesellschaft M.B.H. The Hansa Nord  Q.B. 44 at p. 62, a decision also referred to and relied on in Aswan.
51. The Court of Appeal (Mustill and Woolf L.JJ. and Sir Edward Eveleigh) unanimously rejected this argument. In particular, the court disapproved of the suggestion that the 1973 Act should be interpreted in the light of decisions under the 1893 Act. Mustill L.J. said at pp. 942 - 943:
54. As it happens, the Australian Trade Practices Act 1974 also incorporated amendments to the implied terms of merchantability and fitness for purpose, which are essentially similar to those which were introduced by the Act in UK in 1973. In Cavalier Marketing (Australia) Pty Ltd v. Rasell & Anor (1990) 96 A.L.R. 375 (“Cavalier Marketing”), the Supreme Court of Queensland, which was referred to both decisions and firmly preferred the approach in Rogers v. Parish to Aswan. In Cavalier Marketing, the goods supplied were a carpet, which on installation showed evidence of reverse piling which affected its colour and shading. It was argued that the carpet was fit for the purpose of floor covering in terms of physical quality and manufacture, which was the purpose for which a carpet was commonly bought. Thus it was said to be merchantable notwithstanding the reverse piling. One member of the court, Cooper J., addressed the divergence in the authorities and indeed in the academic commentary on the new provisions. Page 400 of his judgment contains three passages which encapsulate his approach to the section:
…I agree with the observations of Mustill and Woolf LJJ in Rogers. It is unnecessary and undesirable to look to the common law definition of merchantability for the purpose of construing section 66(2) and section 74(g)(1) and (3) of the Act. The common law tests relates to saleability of goods. They are tests of merchants and are more appropriate to commercial sales. The provisions of s.66(2) and s.74(d)(3) are quite different and focus on the reasonable objective expectations of a consumer as defined. They are not concerned with the goods purchased for resale, although indirectly a consumer may purchase goods with the ultimate view of resale e.g. a family motor vehicle. Further the legislation ought to be interpreted against the background of its remedial character giving consumers rights and protection which previously were not available. The definitions in s.66(2) and s.74(d)(3) are comprehensible and flexible and ought to be directly applied, in accordance with their terms, to the many and varied facts and situations which they may apply. …
Goods may have more than one normal purpose … In my view as a matter of construction and as a matter of legislative intent, the section requires that all normal purposes for which goods are commonly bought be brought into consideration. Fitness is tested against each of these purposes and none are to be excluded. The decision is otherwise if the terms of the contract as supplied between the direct supplier to the consumer (including any description applied to the goods by that supplier) or alternatively any description applied by the corporation (i.e. manufacturer/importer/distributor) the goods requires that a particular normal purpose be excluded. Such a construction is reasonable in both the interests of the consumer and the corporation. First, it addresses and responds to the reasonable expectations of the consumer at the time of acquisition of goods that they will be fit for all their normal purposes, subject to the terms of the contract of supply to which the consumer has agreed. Secondly it addresses the reasonable expectations of the corporation as to the purpose or purposes to which the goods will be put. Thus the corporation may by the description, if any, it attaches to the goods, the price it receives and any other relevant circumstances place goods in circulation in such a manner that the corporation may delineate the relevant purpose or purposes itself. ….”
56. The defendant contractor was employed by the plaintiff Borough Council as contractor for the erection of a new five storey office building to be used as civic offices. Phase one involved site preparations and foundation work. The bill of quantities referred to granular hard core which was to be graded or uncrushed gravel stone or rock, filled crushed concrete, or slag. It was accepted that the granular fill material supplied included steel slag, and that in fact such steel slag, in confined conditions, was subject to expansion, and did expand so as to cause cracking to the reinforced concrete slabs and damage to the building.
57. The claim in the Rotherham case was by the client against the builder. In other words, it was the equivalent of a claim made by Ballymun against the Elliott Construction in these proceedings. As such, it was not a claim for sale of defective goods, but rather provision of services alleged to be defective by the supply of the product. It was however, accepted that the same principle supplied in such a case as in a claim for breach of the terms implied on a sale of goods. The plaintiff Borough Council succeeded at first instance in establishing both a breach of the implied term as to fitness for purpose and the merchantability. In the Court of Appeal, the decision was reversed. The principal focus of the case was the implied term of fitness for purpose. The Court accepted that the specific purpose for which the product was used was made known to the contractor since the specifications made it clear that it would be used in a confined space as foundation material. However, the Court concluded that the circumstances showed that the plaintiff had not relied on the contractor’s skill and judgment, principally because the material was specified by the plaintiff’s architect. The case was treated as one in which the question to be resolved was who should bear the risk of the damage to the building caused by the fill used around the foundations, the professional persons who specified the material or the contractors who supplied it? The Court appears to have been influenced by the fact that there was some developing knowledge about the capacity of steel slag to expand, and that the architects and engineers specifying it were in a better position to know that than contractor who bought material for suppliers to fill a contractual specification. In the circumstances of the case, the Court held that the plaintiff had not relied on the skill and care of the contractor. It will be necessary to return to this analysis when considering the claim under s. 14(4).
58. However the decision also dealt with the claim that there was a breach of the implied term as to merchantability which it was accepted formed part of the contract between the plaintiff Borough Council and the defendant contractor. That was dealt with as subsidiary to the main argument on fitness for purpose and appears to have been influenced by the conclusion to which the Court came on that point. Unfortunately, although the Court was referred to the Hardwick Game Farm case and Aswan, there was no reference to Rogers v. Parish or to Cavalier Marketing.
59. The central factual feature of this case was the agreement between the experts that, “‘[s]teel slag is currently being used in a number of applications in the construction industry. The material is saleable and can be used in appropriate unconfined applications and in bituminous macadam.’” (p. 1389). Indeed, it was observed that it was used for those very purposes on the contract. The Court accordingly concluded that it was commercially saleable, and, therefore, of merchantable quality. The Court adopted the analysis of Lloyd L.J. in Aswan as to the coincidence between the pre-1973 law and the statutory definition contained in the 1973 Act.
60. Irish Asphalt has understandably placed heavy reliance on the decision in Rotherham, not least because of its factual similarity to the present case. While acknowledging the different strand of judicial opinion illustrated by Rogers v. Parish and Cavalier Marketing, it was nevertheless submitted that the analysis proffered by Lloyd L.J. in Aswan was the correct one in relation to the statutory definition of merchantability contained in the 1973 Act as reproduced almost identically in the 1980 Act.
61. There are good reasons why an Irish court should analyse with particular care decisions in other common law jurisdictions in respect of the provisions of the 1893 Act and its statutory successors. First, where the provisions are identical, the analysis of another court will often be helpful. Second, all other things being equal, it is normally desirable that significant differences of interpretation of the same provisions between courts in different jurisdictions should be avoided. Particularly in the field of international commercial transactions, there is a significant benefit in the same well understood code applying in different jurisdictions. Where, outside the field of consumer contracts, the parties can negotiate their own terms, all that such parties require is knowledge of the default position. In the light of that knowledge, they can decide whether they wish that position to be adjusted in the contract between them. In such circumstances, certainty is often more important than the most intellectually satisfying analysis. Furthermore, where an interpretation of the statutory provision has been settled on in one jurisdiction, and another jurisdiction subsequently adopts the same statutory language, it may be permissible, subject to the strictures contained in Inspector of Taxes v. Kiernan  I.R. 117, to deduce that the legislature has adopted that language in the knowledge of the interpretation applied to it. In certain circumstances, the fact that a court in one jurisdiction offered an authoritative interpretation of a statutory provision might itself be a powerful argument in favour of the adoption of that same interpretation of what might otherwise appear to be an ambiguous statutory provision.
62. However, these factors have little weight in this case. First, Aswan post-dated the provisions of the 1980 Act. Second, neither Aswan nor Rotherham can be regarded as entirely authoritative even in terms of the jurisprudence of the UK because of the existence of the decision in Rogers v. Parish, and the fact that Rotherham was decided without reference to that case. Perhaps even more importantly, the decision in Cavalier Marketing shows that the Aswan interpretation has not been accepted in another common law jurisdiction. Finally, and in any event, the fact that the statutory definitions have now diverged since 1994 removes the possibility of cross-jurisdictional uniformity of interpretation. Accordingly, it is necessary to address this case on its merits.
63. It is no discourtesy to the lucid submissions of counsel for Irish Asphalt to say that we have come to the clear conclusion that its arguments cannot be accepted. Indeed, the clarity of the argument has greatly facilitated the Court’s analysis. Nevertheless the Court has come to the conclusion that there was in this case a breach of the implied term as to merchantable quality.
64. At a fundamental level, the Court considers that the evidence does not provide a sufficient basis in fact to allow an argument based on Aswan to be advanced. It should be said that, notwithstanding the amount of judicial and academic ink spilt over the issue, the problem identified in cases such as the Hardwick Game Farm and Aswan is not a common place one. It requires evidence of something which must normally be unusual, or in the words of Lord Reid, surprising. It is a necessary precondition of the legal argument that it be established as a matter of fact that, although a product contains an element rendering it defective for one purpose for which it is commonly bought or sold, it can nevertheless be sold and used for another purpose for which it is commonly sold, and then at a price at least equivalent to the price paid for the product which proved defective for the purpose for which it was bought. Furthermore, adopting the approach of Dixon J. at first instance in the Australian Knitting Mills Ltd v. Grant case, it would be necessary to show that a buyer with knowledge of the defect or characteristic, would nevertheless purchase it, at a roughly equivalent price. It is understandable that such evidence would, in the normal case, be surprising. The reference to price in the statutory formula is important. Where a product has a number of possible uses, the fact that a product has more than one application or use, by increasing demand, will normally have an impact upon price. If it transpires that a product can only be safely used for one of its possible purposes, it is normally to be expected that that will depress the price in a functioning market. It is not readily to be assumed that a purchaser with knowledge of the characteristic of the product would nevertheless purchase it for another purpose at the same or similar price. In the Hardwick Game Farm case, such evidence, albeit surprising, was available. Similarly, in the Rotherham case, the agreed evidence of the experts was taken as establishing that fact. But that is evidence which requires to be given and tested, and should not be readily assumed.
65. In this case, in the Court’s view, the evidence falls far short of what is required to establish a sound basis for the Aswan argument. It is important that evidence was not directed towards this point. Instead, the argument was based on a careful analysis of the evidence in general, from which it was said it was possible to deduce that Clause 804 had been used uniformly as hardcore throughout the site, both in respect of load bearing areas under the building and outside the footprint of the building. It was established that the remediation work had removed Clause 804 used under the building, and some, but not all, of that used outside the footprint of the building. From this, it was said it should be deduced that the Clause 804 not removed was satisfactory, and, accordingly, it was argued that this should be accepted as evidence that the product was fit for one purpose and, therefore, applying the Aswan analysis, was of merchantable quality. Notably, although Clause 804 was initially identified as hardcore for use in road building, it was not suggested, either in argument or evidence, that Clause 804 containing pyrite was suitable for this purpose.
66. The Court is satisfied that this falls decisively short of the level of evidence which it would be necessary to establish to allow the Aswan argument to be made. The evidence that Clause 804 was not removed from car park areas does not demonstrate that a purchaser with knowledge of the defect would nevertheless pay a similar price for such material for use even under a car park and in open space areas. The absence of such evidence is particularly telling in this case. The defendant, as owner of a quarry with substantial quantities of stone affected by framboidal pyrite, would be in a strong position to provide evidence of sales of the product, if such evidence were available.
67. Since, however, the High Court addressed the substance of this issue, and since questions of the interpretation of s. 14 of the 1893 Act (as amended) rarely reach this Court, it is desirable to address the substantive legal issue. On the assumption, therefore, that it was demonstrated that there was a use for which the Clause 804 was saleable to a purchaser aware of the pyrite content and its propensity to swell and heave, then we are of the view that that fact alone would not be sufficient to render the product supplied to the respondent merchantable within the meaning of s. 14 as substituted.
68. First, the Aswan decision is complicated by the fact that the result seems plainly correct. The pails were very robust and almost withstood extraordinary heat to which they were subjected, and would indeed have withstood even that heat if not packed on top of each other in a manner which increased the pressure on the pails. But we doubt, with respect, that it could properly be said that there were two separate purposes involved here, or indeed, that the purpose of the storage of waterproofing compound in Kuwait could be said to be a separate and distinct purpose from that for which for which the pails were commonly sold. It seems more natural to consider that the purpose for which the pails were sold, whatever the location, was a single one: the storage of waterproofing compound or perhaps more generally, other bulk liquids for transport and storage. That was the purpose for which the pails were commonly used and sold, and taken as a whole, the pails were as fit for that purpose as it was reasonable to expect. This was indeed, it appears, the basis upon which the judge at first instance had rejected the plaintiff’s claim. We consider that this is a more plausible and practical approach to this case. Indeed, the fact that it is possible to characterise the same product as either having different purposes or a single purpose expressed at a more general level of abstraction, suggests that there are significant limits to the applicability and utility of this line of argument.
69. Second, we consider in any event that the approach to statutory interpretation in Roger v. Parish and Cavalier Marketing, is preferable to that in Aswan. The normal purpose of statutory amendment is to change the existing law. It may on occasion be useful to address the prior law if only to illustrate the area of change, but it would be unusual to approach a statutory provision on the basis that it did no more than restate the existing law. Indeed, if the definition of merchantable quality was intended to simply express in a slightly more compressed form what had already been said by Lord Reid in the Hardwick Game Farm case, it is difficult to see what would be achieved by attempting to put in statutory form what had already been laid down by the highest court in that jurisdiction.
70. Third, the purpose of the 1973 Act and the 1980 Act was to effect significant changes in the law generally, and in particular to shift the balance of the law somewhat in favour of the purchaser, and indeed to establish the concept of consumer sales in which it would not be possible to exclude the implied terms. It might be said that the changes to the concept of merchantability were quite marginal, but these cases, as the difference of judicial opinion shows, were at the margins, and it is not inconceivable that small changes of definition might alter the outcome of such cases.
71. Fourth, taken on its face, the terms of s. 14(3) are clear, easy to apply, and by no means absurd. There is no reason to advance or accept a more sophisticated meaning. The words “purpose or purposes” when applied in their ordinary sense are both capable of application and produce a sensible result. On the other hand, it is, and with respect, not easy to interpret the words as expressing Lord Reid’s definition in a more compressed form. It is necessary to hypothesise the purpose for which goods are most “commonly bought” for which they are nevertheless, unfit. If this is indeed the case, it is difficult to see why there should be any reluctance to find such goods to be not of merchantable quality. The emphasis on description, while understandable in the context of the 1893 Act where the applied term as to merchantability only arose on sales of description, is less appropriate in the context of the modern legislation
72. Furthermore, the example proffered in Aswan of the circumstance of sale of the same goods by different descriptions, and, therefore, justifying their reference in the plural to “purposes” is not, in our view, persuasive. It was said that heavy duty pails were of higher quality than ordinary pails and for that reason might command a higher price. Pails which are suitable for the lower quality purpose may not be suitable for the higher quality purpose. It would however be obviously wrong that pails sold under the description appropriate to the higher quality should be held to be merchantable because they are fit for a purpose for which pails are sold under the description appropriate to the lower quality. In such a circumstance, it would seem more natural to conclude by reference to the statutory definition, that the more expensive heavy duty pails were not of merchantable quality because they were not fit for the purpose (singular) for which they were sold, having regard to the description applied to them and the price. In any event, this complex interpretation seems an unlikely one to ascribe to a drafter who has used plain and simple language.
73. Finally, and from a broader perspective, it was argued that the interpretation adopted in Rogers v. Parish and Cavalier Marketing, and in the High Court in this case, shifts the dividing line between the merchantability term and the fitness for purpose term, to the point where the fitness for purpose term is virtually obliterated. However, the history of the development of the formulation and interpretation of the terms traced so carefully in Aswan and elsewhere, is of the gradual elevation of the merchantability term, which means, almost inevitably, that the fitness for purpose term has less work to do. This, in itself, is not a reason to reject the interpretation of the High Court. Furthermore, it is perhaps inaccurate to speak of a ‘dividing line’ between the terms. Both terms now address fitness for purpose, and there is an unavoidable, and intended, overlap between them. Indeed, the fitness for purpose term is capable of covering all the ground dealt with by the merchantability term and more. While the fitness for purpose term applies most naturally in the area of special or unusual purposes, it is in principle capable of applying to any purchase. For example, even if the implied term as to merchantability arises, if the purchaser makes known to the seller the purpose for which the goods are bought, then, even if that is the sole purpose for which such goods may be sought, the purchaser can succeed under the implied term as to fitness for purpose as well as the implied term as to merchantability. It is thus perhaps more accurate to say that the end result of the interpretation adopted in the High Court is that the area which is covered for the fitness for purpose term alone, is reduced to special or uncommon purposes but we see no reason why that should lead to a different interpretation of the term ‘merchantable’. A narrow reading of the merchantability term is often justified by the argument that, if the purchaser wishes greater protection, he or she can always invoke the fitness for purpose term by making known the purpose for which the product is sought, and relying on the seller’s skill. This is so, but is hardly a compelling reason to adopt a narrower interpretation. There also must be limits to this type of argument since it assumes, touchingly but unrealistically, that parties negotiating sales are avid consumers of the decisions on the Sale of Goods Act and its various amendments. But even if this approach is taken, it still seems more sensible to adopt the Rogers v. Parish approach. A seller may be more knowledgeable about the purposes to which the product is put than the purchaser. A purchaser may not know that there are multiple uses for the product. He or she may consider that the use for which they are buying the product is the obvious and only use for the product. But, on the Aswan reasoning, the product, though unfit for that purpose (being perhaps the overwhelmingly obvious purpose for the product), can nevertheless be merchantable, if it is suitable for some purpose of which the buyer may be entirely unaware. In such circumstances, the purchaser may not even know of these matters, or their legal consequences, and thus may be unaware of the importance, and indeed necessity, of seeking to bring into play the warranty of fitness for the particular purpose for which he or she has brought the product.
74. Finally, at the level of principle, an interpretation of the provision which imposes the risk (at least initially) upon the seller rather than the purchaser, is sensible and logical. Sellers are normally much more aware of the use to which their products can be put than individual buyers. Increased use will increase demand, and, therefore, the price for the goods, even when used for the original purpose. It is perhaps noteworthy that one of the innovations in the 1980 provisions is the reference to the price at which the product was sold being a component of merchantability. For these reasons, we have come to the conclusion that Irish Asphalt’s contention must fail, and that the High Court was right to hold that the Clause 804 as applied here was not of merchantable quality.
Fitness for Purpose
77. The evidence and decision in this matter are contained in paras. 246 and 247 of the judgment of the High Court. The relevant evidence was the cross-examination of Patrick Elliott, the principal of the plaintiff firm, Elliott Construction. Mr Elliott accepted that he did not supply any copies of the Ballymun Regeneration contract to Irish Asphalt from which it follows, none of the drawings would have been supplied to that company. This is to be expected. Elliott Construction merely ordered from a supplier, in this case Irish Asphalt, a product which had been specified by the professional advisers to Ballymun. Mr Elliott agreed that he did not ask anyone from Irish Asphalt to come and look at the site, but pointed out that that firm visited the site regularly with their deliveries. Elliott Construction did not tell Irish Asphalt specifically that it was going to use the Clause 804 under the building. Mr Elliott considered however that that was implied because “why else would we have been buying the Clause 804 off them, it’s a structural infill material…”. He said:
78. It is clear that this was a subsidiary issue in the trial. Furthermore, in circumstances where this Court has upheld the finding of a breach of the condition as to merchantability, it becomes less important to determine whether or not there was a breach of s. 14(4). However, in view of the conclusion of the High Court Judge, the view we have taken of it, and the importance of clarity in this area, it is necessary to consider the matter.
79. While s. 14(4) might apply most classically in the case of a purchaser asking a vendor’s advice as to whether a particular product is suitable for some particular purpose, it is not necessary that anything so formal or pedantic should take place. In many cases, it would be apparent that the particular purpose has been made known by implication, and it is the circumstances, rather than any express evidence, which may show that the buyer does, or does not, rely on the seller’s skill and judgment. Furthermore, while there are a number of different components to the section, it is important to keep in mind that it is a single provision, and that, in most cases, the relevant evidence will be short, and will satisfy all the components of the section, both positive and negative.
80. One distinctive feature of the section, and in contra distinction to s. 14(2), is that, as already observed, it is triggered by the purchaser doing something. This is of some importance because it is the making known of the purpose which gives rise to the circumstances which may demonstrate that the buyer does not rely, or that it is unreasonable to rely, on the seller’s skill and judgment. Therefore, it is not enough that the evidence shows that the seller knows the purpose for which the product is used. There must, at some basic and even rudimentary level, be some circumstances from which it is fair to say that the buyer made that purpose known to the seller. In our view, the evidence goes so far as to demonstrate that the seller probably knew that one of the purposes for which the Clause 804 was ordered by Elliott Construction was to be used under the building at foundation level, but there is no evidence from which it can be said that it was made known to the seller by the buyer as envisaged by s. 14(4). By the same token, and in this respect, applying similar analysis to that in the Rotherham case, we conclude that the circumstances in this regard show that Elliott Construction did not rely on Irish Asphalt’s skill or judgment. Elliott Construction did not itself exercise any thought as to the appropriateness of this Clause 804 for the contract. It was specified, by the employer, on the advice of its professional advisors, and Elliott Construction was required to obtain it. There was no room in that transaction for reliance by Elliott Construction on Irish Asphalt’s knowledge, skill or judgment, as if Elliott Construction relied on anyone’s skill or judgment, it was by implication that of the persons specifying the Clause 804 for this purpose, although it might be more realistic to say that, in that regard, Elliott Construction was simply complying with its contractual obligations. Accordingly, we conclude that no implied condition arose under s. 14(4) of the 1893 Act, as substituted by s. 10 of the 1980 Act. Since, however, we have also concluded that there was a breach of the implied condition as to merchantability, this conclusion on s. 14(4) does not affect the outcome of the case.
Incorporation of Terms and Conditions
82. Irish Asphalt sought to rely on the terms and conditions by reason of the provisions of Clause 8 thereof which have the effect of limiting its liability in the event of goods being defective. Clause 8 is in the following terms:
(2) Actual notice of the terms and conditions by reference to three credit notes;
(3) Reasonable notice by reference to delivery dockets both during the course of the Ballymun Regeneration Project and in the course of earlier projects;
(4) Incorporation by means of a course of dealing;
(5) Incorporation by reference.
85. An important part of Irish Asphalt’s argument on the issue of incorporation concerned the status of the delivery dockets, and how they should be viewed in the context of the contracts as a whole. It was submitted on behalf of Irish Asphalt that each individual delivery was a separate contract. Counsel for Irish Asphalt submitted that the delivery dockets were contractual documents, and that the signing of those dockets by Mr Hannay, the site foreman of Elliott Construction, created, or alternatively, evidenced, the contracts. Thus, counsel submitted that on each occasion, an individual contract for the sale of Clause 804 took place, and that the contract must have included the terms and conditions relied on because of the proviso as to terms and conditions contained in the delivery dockets signed by Mr Hannay.
86. The delivery dockets were described as contractual documents by Elliott Construction in its replies to particulars, wherein it was stated: “The contractual documentation consists of delivery dockets and invoices”. The characterisation of the delivery dockets in the replies to particulars as contractual documents does not of itself answer the question as to whether or not the delivery dockets are contractual documents, or, more importantly, whether the terms and conditions of Irish Asphalt were incorporated into the contract either by signature or by reference.
87. Counsel on behalf of Elliott Construction, contended that, insofar as the terms of the contract were concerned, they were negotiated prior to the involvement of Mr Hannay. While it was accepted that there were individual contracts created on each occasion that the foreman on site ordered a specific load, the foreman did not have any involvement in the negotiation of price, or in relation to the acceptance or otherwise of any terms and conditions. The pre-existing terms as to price were those agreed between the principals of the respective parties. In his submissions, counsel for Elliott Construction made reference to the High Court decision (Finlay Geoghegan J.) in the case of Noreside Construction Limited v. Irish Asphalt  IEHC 364 (“Noreside”) which is under appeal to this Court. While not relying on the judgment in that case on the subject of contractual documents by way of precedent, counsel for Elliott Construction relied on the analysis contained in that judgment as to the role of the delivery dockets:
89. The Court is of the view that there was an overarching contract between the parties or a “master contract” for the supply of goods for the Ballymun project which identified, inter alia, the goods required, the price for the goods, and the credit terms applicable to the sale of those goods. After that, a series of separate contracts were made for the sale and supply of Clause 804 during the course of the Ballymun Regeneration Project. It is in that context that the Court will consider the nature of the delivery dockets.
90. Counsel for Irish Asphalt relied on a number of authorities in support of its arguments including the decision in the case of Spurling Limited v. Bradshaw  1 WLR 461 (“Spurling”) in which the United Kingdom Court of Appeal considered the status of a “landing account”. The defendant in that case had dealings with the plaintiff warehousemen, and delivered to them a number of barrels of orange juice for storage. A few days later, the defendant received a “landing account” which, on its face, referred to conditions printed in small type on the back. Those conditions included an exemption clause. The barrels, when collected, were found to be empty, or in such damaged condition as to be useless. The warehousemen sued for charges due for storage and the defendant counterclaimed for damages for breach of an implied term of the contract of bailment to take reasonable care of the barrels. Denning L.J. (at p. 467) commented:
Next it was said that the landing account and invoice were issued after the goods had been received and could not, therefore, be part of the contract of bailment: but Mr. Bradshaw admitted that he had received many landing accounts before. True he had not troubled to read them. On receiving this landing account, he took no objection to it, left the goods there, and went on paying the warehouse rent for months afterwards. It seems to me that by the course of business and conduct of the parties, these conditions were part of the contract.”
92. It is clear that the Court of Appeal in that case was not concerned with the fact that the landing account was issued after the goods had been received. As the landing account and invoice with the terms and conditions containing the exemption clause had been provided to the defendant on many previous occasions, the Court concluded that, by the course of business and conduct between the parties, the terms were incorporated into the contract.
93. The case of British Road Services Ltd v. Arthur v. Crutchley & Co. Ltd (No.1)  1 All E.R. 811 (“British Road Services Ltd v. Arthur”), involved a delivery note issued in the course of a contract of bailment. Under a long established course of business between the plaintiff carriers and the defendants, delivery notes for goods transported by the plaintiffs and delivered at the defendants’ warehouse in the course of trans-shipment at Liverpool would be handed back to the plaintiffs’ lorry drivers, on the defendants receiving the goods, stamped “Received on AVC [that is the defendants’] Conditions”. The conditions included a term limiting liability to £800 per ton. A lorry load of whisky was delivered by the plaintiffs to the defendants’ warehouse. During the night the warehouse was broken into, and the whisky was stolen. On appeal, it was found that the defendants’ conditions of carriage were incorporated into their contract with the plaintiffs, and, accordingly, the liability of the defendants was limited to £800 per ton. At pp. 816-817 of his judgment Lord Pearson commented:
95. Another case relied on by Irish Asphalt in relation to the nature of contractual documents is the case of Thompson v. T. Lohan (Plant Hire Limited) Ltd & Anor  1 W.L.R. 649 (“Thompson v. T. Lohan”), a case in which at issue was a letter and a time sheet. This was a judgment of the Court of Appeal of England and Wales. The letter in question concerned the hire of an excavator and contained the following:
97. That case supports the proposition that terms and conditions can be incorporated by reference to specific terms and conditions in common use in that industry. Significantly, the letter of the 8th September contained the clause set out above stating the terms of the hire in question and the time sheet was relevant because it also made reference to the C.P.A. terms.
98. The English High Court decision in the case of Photolibrary Group Ltd v. Burda Senator Verlag GmbH  2 All ER (Comm) 881 (“Burda”) is also of interest. It concerned the role of delivery notes. The claimants in the case supplied photographs in the form of transparencies for the consideration of the defendants for publication in their magazines. The defendants would pass on their requests to one of their number who would in turn pass on the request to photograph providers. A number of photographs would be selected and sent to the defendant publishers. They would be considered, some would be published, some not. Those not used would be returned after consideration, some quickly, some not. When the transparencies were sent to the defendants, they were accompanied by a delivery note. On its face and back, it set out terms of business. They were standard terms of the British Association of Picture Libraries and Agencies. A substantial parcel of transparencies was sent out accompanied by the delivery note. While a number of transparencies were being returned, they were lost in transit between Germany and London. The terms and conditions included a term requiring the party who requested them to pay a holding fee while the transparencies were retained and also provided for payment of compensation for loss. In the course of his judgment, Jack J. said:
. . .
68. It follows also that I reject the submission that the deliveries of transparencies are to be considered as bare bailments with no terms apart from a term as to the return of the transparencies with an obligation to take due care of them in the meanwhile. While it is now clear that contract is not a pre-requisite to bailment — I refer to Chitty on Contracts (29th Edition, 2004) Volume II, page 176 (paragraph 33-002) - in my view, in commercial situations such as the present where goods are passed by way of business from one party to another, it will be very unusual that there will be no contract between those parties.”
64. The alternative analysis that the faxed requests for transparencies to be submitted were offers to submit them on the usual terms, that is, the terms of the delivery notes, which offers were accepted by the submission of transparencies accompanied by the notes, seems to be equally viable. Likewise the case can be put on the basis of an established course of dealing on the terms of the delivery notes: compare the Circle Freight case.”
100. Reference was also made to the decision of the Scottish Court of Session - Inner House in the case of Continental Tyre & Rubber Co.Ltd v. Trunk Trailer Co. Ltd  S.C. 163 (“Continental Tyre & Rubber Co. Ltd”). That case concerned the sale and delivery of tyres, and a claim in respect of sums due in respect of the sale of the tyres. A number of tyres had been ordered by a purchase order in a standard form; on delivery, the pursuer’s driver tendered a delivery note in standard form and this was signed by a junior employee of the defenders. An invoice was sent about ten days later. The tyres were alleged to have been rejected by customers of the defenders as not being of merchantable quality. The pursuers in that case, on the assumption that the warranty as to merchantable quality had been breached, pleaded that their liability was excluded by a reference to their standard conditions of sale on the delivery note. It was contended that this note was a counter offer accepted by the defenders. They also relied on the argument that a recent and consistent course of dealing meant that the terms of the delivery note had been incorporated into the contract. It was held in that case that the contract was concluded as soon as the first batch of tyres had been delivered and the delivery note was merely a receipt indicating quantity and description of the tyres. It did not amount to a contract note or a record of the terms on which supply was made. Also, it was pointed out that there were no averments that a signature was required before delivery. It was further held that the incorporation of the contractual term by a course of dealing depended on whether the pursuers were reasonably entitled to conclude that the defenders accepted the tyres subject to their conditions, and particularly on whether sufficient notice had been given; the delivery note was not contractual and the defenders had continued to send purchase orders bearing that their own conditions were to prevail.
101. Lord Brand, the Lord President, in the course of his judgment (at p. 168) commented:
103. Reference was also made in the course of the submissions to Treitel on The Law of Contract (12th Ed.) at paragraph 7 - 006 where it is stated:
An exemption clause is not incorporated in the contract if the document in which it is set out (or referred to) is not intended to have contractual force: e.g. if the document is a mere receipt for payment. On the other hand, the mere fact that a document is called a ‘receipt’ will not prevent it from having contractual effect. The document will have such effect if the party to whom it was handed knew it was intended to be a contractual document or if it was handed to him in such circumstances as to give him reasonable notice of the fact that it contained conditions. It will also be contractual if it obvious to a reasonable person that it must have been intended to have this effect. This will be the case if the document is of a kind that generally contains contractual terms. Whether a document falls into this class depends on current commercial practice, which may vary from time to time.”
[T]he document must be of a class which either the party receiving it knows, or which a reasonable man would expect, to contain contractual conditions...”
106. The second point that seems to be clear from the authorities is that in those cases in which it was successfully argued that the document at issue was a contractual document, the document contained, in one form or another, the terms and conditions actually relied on. Thus, in Spurling, the document at issued was a landing account which referred on its face to conditions printed in small type on the back. Those conditions spelt out clearly the basis on which the goods were to be taken by the warehouse.
107. The case of British Road Services Ltd v. Arthur.is notable in that the defendants’ conditions were incorporated into the contract as described above, but the plaintiffs’ conditions of contract were not found to have been incorporated in the contract, in circumstances where there was no evidence that their conditions of sub-contracting were ever sent to the defendants.
108. A third point to note is that the timing of the delivery of the relevant terms and conditions may not be the deciding factor in any given case. The decision in James A. Slattery v. Córas Iompair Éireann  106 I.L.T.R. 71 (“Slattery v. CIE”) (to which reference will be made later) reinforces the point that a party may be bound by terms and conditions although they sign a consignment note containing the terms and conditions of the contract after performance of the contract by one of the parties.
109. What emerges from the authorities is that, to be a contractual document, the document must be one which contains contractual conditions or a reference to specific terms and conditions well known in a particular industry. It is not sufficient to refer in general terms to unspecified terms and conditions. The proviso on the delivery docket in this case is akin to that in the Continental Tyre & Rubber Co. Ltd case which was found not to incorporate the pursuer’s terms and conditions. The Court is satisfied that the delivery dockets, signed by Mr Hannay for the most part, on behalf of Elliott Construction, were for the purpose of recording the type of material delivered, the date of delivery and quantity delivered, and did not set out the terms and conditions of the contractual arrangement between the parties. They are not documents which “generally contained contractual terms”, as it is put in Treitel, or documents of a class which the party receiving it or which a reasonable man would expect to contain contractual conditions as Chitty on Contracts describes it. Accordingly, having regard to the facts and circumstances of this case, the Court rejects the contention that the delivery notes are contractual documents in the sense contended for by Irish Asphalt.
Incorporation by signature
111. Counsel for Irish Asphalt, in the course of his submissions, referred to the leading case of L’Estrange v. F. Graucob Ltd  2 K.B. 394 (“L’Estrange v. Graucob”). Scrutton L.J. at p. 403 of his judgment stated:
113. Reference was also made to Slattery v. CIE. This case related to the transport of a horse. The plaintiff in the case had signed a consignment note following the delivery of the horse. The consignment note signed by the plaintiff was headed in large heavy black print “Consignment note and delivery sheet for horses to be carried… at owners’ risk”. Teevan J. in the course of his judgment at p. 73 noted that the plaintiff’s signature was about two or three inches below that heading. He went on the course of his judgment to observe:
114. Irish Asphalt relies on the delivery dockets signed by Mr Hannay as and when goods were delivered by Irish Asphalt to Elliott Construction. It was contended that the delivery dockets were contractual documents and as such the signature by Mr Hannay on the delivery dockets was sufficient to incorporate the terms and conditions into the contract.
115. Counsel on behalf of Elliott Construction did not take issue with the principles identified by counsel for Irish Asphalt, but did not accept that they are applicable to the facts of this case. The delivery dockets, he contended, were not contractual documents in the sense put forward by Irish Asphalt, a point which the Court has accepted. He further argued that incorporation by signature only occurs where, in the course of the formation of a contract, a document is signed which contains the terms of that contract or some of them. He added, in his written submissions, that Slattery v. CIE was a case dealing with a post-contractual document, and was, in that sense, a decision which concerned acknowledgement and estoppel, rather than incorporation by signature. Teevan J. in that case had commented:
It is submitted that the reason why a signature is binding is because it demonstrates assent to the terms above it. There is no need to invoke arguments based on estoppel. As Lord Devlin stated in McCutcheon v. David MacBrayne Limited: ‘the law is clear, without any recourse to estoppel, that a signature to a contract is conclusive’.”
117. In the present case, the documents relied on to argue that the terms and conditions were incorporated by signature are the delivery notes. The delivery notes did not contain the terms and conditions. They contained a proviso that “the material is sold subject to the terms and conditions available on request”, but, in the view of the Court as explained previously, this is not sufficient for the purpose of incorporation by signature. The party, to be bound, must know what the terms and conditions are (for example, by reference to specific, well known, industry wide terms and conditions on the contractual document, such as the A.V.C. conditions in the British Road Services Ltd v. Arthur case) or by setting out the specific terms and conditions relied on in the document to be signed. A bland reference to terms and conditions alone cannot suffice. It could not be said that the inclusion of such a proviso on a delivery docket is reducing the terms of the contract to writing. How is one supposed to know what those terms and conditions are? As McMeel put it, “a signature is binding because it demonstrates assent to the terms above it.” Thus, the Court is satisfied that the terms and conditions were not incorporated into the contract by the signature of the party to be bound as the delivery dockets could not be regarded as contractual documents.
Incorporation by Actual or Reasonable Notice
121. Reference was also made to the case of Olley v. Marlborough Court Ltd  1 K.B. 532. That case concerned the hire of a hotel bedroom. It was found that the contract between the party hiring the bedroom and the hotel was made before the guest had access to the bedroom. In the hotel bedroom, there was a notice which sought to limit the hotel’s liability in respect of valuables that had not been deposited with the hotel. Mrs Olley found that furs and jewellery and other items were missing from her bedroom at a later stage during the course of her stay. The hotel tried to restrict its liability in respect of the loss by reliance on the notice in the plaintiff’s bedroom. Denning L.J., in the course of his judgment (at p. 549), commented:
123. For completeness, reference should be made to an ex tempore decision of the High Court (Barrington J.) in the case of O’Beirne v. Aer Rianta, (Unreported, High Court, 20 May 1987) (“O’Beirne”). The facts of that case were very similar to those in Thornton v. Shoe Lane Parking Ltd. Barrington J. came to a different conclusion, stating:
125. It was contended on behalf of Irish Asphalt that the learned trial judge failed to have regard to the fact that the Elliott Construction had actual notice of the terms and conditions prior to the commencement of the contract or contracts for the supply of materials at Ballymun. It was accepted that a credit note had been received by Elliott Construction on the 31st January, 2004 and two were received on the 30th June, 2004. It was submitted on behalf of Irish Asphalt that, once this had been established, Elliott Construction attempted to change the emphasis of their arguments by stating that the credit notes were only seen by those involved in the accounts department and not by senior management. It was also pointed out that Elliott Construction had conceded that Mr Hannay was aware of the proviso on the delivery notes, as indeed was Mr Elliott.
126. The Court does not agree with the submission on behalf of Irish Asphalt to the effect that the learned trial judge did not have regard to the fact that Elliott Construction had actual notice of Irish Asphalt’s terms and conditions before the contract began. At para. 254 of the judgment, the learned trial Judge dealt comprehensively with the evidence in relation to the question of actual notice. He referred to a number of items of correspondence between the parties which Irish Asphalt relied on to demonstrate that Elliott Construction had received the terms and conditions. For example, one was a template letter of the 29th January, 2003, announcing the opening of the quarry at Bay Lane. The letter was sent by way of a mail merge and was identified in an affidavit of discovery as if terms and conditions were printed on the back. The learned trial judge commented as follows:
128. Having considered the evidence of Ciara Cassidy, on behalf of Irish Asphalt, and Patrick Elliot as to the correspondence, the trial judge made an observation in the course of para. 254 of the judgment in the following terms:
130. The issue then arises as to the correctness of the view of the trial judge as to whether or not Irish Asphalt had given reasonable notice of its terms and conditions to Elliott Construction at any stage. In the course of his judgment, the learned trial judge stated at para. 251:
133. In support of his arguments in this regard, counsel for Irish Asphalt referred to a passage from McMeel in The Construction of Contracts (at p. 430) where the following observation was made:
In Circle Freight International Ltd. v. Medeast Gulf Exports Ltd., the invoices each stated in small print at the bottom: ‘All business is transacted by the company under the current trading conditions of the [ISF] a copy of which is available on request’. This was, in the words of Bingham L.J., both “clear and legible” and “placed immediately below the price where the eye would naturally light on it”. The exporters never requested a copy and none was sent. Having reviewed the authorities Taylor L.J. concluded:
“It is not necessary to the incorporation of trading terms into a contract that they should be specifically set out provided that they are conditions in common form or usual terms in the relevant business. It is sufficient if adequate notice is given identifying and relying upon the conditions and they are available on request.”
In the present case, nothing whatever was done by the plaintiffs to draw the defendants' attention particularly to condition 2; it was merely one of four columns’ width of conditions printed across the foot of the delivery note. Consequently condition 2 never, in my judgment, became part of the contract between the parties.’”
137. The question then arises as to the role of the credit notes which did contain Irish Asphalt’s terms and conditions. One point to bear in mind is that the credit notes were furnished to Elliott Construction by Irish Asphalt prior to the formation of the relevant series of contracts. The second point to note is that the credit notes were provided to the accounts department of Elliott Construction, and evidence was given by Patrick Elliott to the effect that the personnel in the accounts department who would have seen the credit notes were not at a managerial level within the company, a fact accepted by the trial judge. Regardless of the question of the status of the personnel within the accounts department, there was no evidence to suggest that the provisions of Clause 8 of the terms and conditions of contract set out in the credit notes were ever drawn to the attention of any representative of Elliott Construction.
138. Complaint is made by Irish Asphalt that, in considering the question of reasonable notice, the trial judge adopted an incorrect test, in that he introduced a test that a company is only bound by an exclusion clause if it is brought to the notice of senior management level within the company. Reference was made to the position of Mr Hannay, the foreman who signed the delivery dockets, and it was contended that the evidence established that he was a senior person within the company. Charleton J. at para. 252 of the judgment stated:
139. The manner in which the contracts were dealt with was that there was an original engagement between Mr Elliott and Mr Lagan on behalf of Irish Asphalt. They agreed the terms of the contracts in relation to this particular project. Thus, they agreed on such matters as price, terms of credit, cost of delivery and so on. Thereafter, from time to time, and as and when required, individual deliveries were made to the site in accordance with those terms. Undoubtedly, the day to day orders were placed by Mr Hannay but there is nothing to suggest that he had any involvement beyond deciding what quantity of Clause 804 was required on any given day; he accepted deliveries duly made, and did so by means of his signature on the delivery docket.
140. The negotiations between the parties prior to the commencement of this project took place at a high level. In order to give reasonable notice of the terms and conditions relied on by Irish Asphalt, it is logical to conclude that such notice should be provided at the same level. It would be somewhat surprising to reach the conclusion that reasonable notice of an exclusion clause could be given to the party to be bound by informing a low level member of staff of the existence of the exclusion clause. In this case, there is no doubt that Mr Hannay is a valued and responsible member of staff but he could not have negotiated the terms of the contract between the parties, and it is hard to see how the giving of notice as to an exclusion clause to someone in his position could satisfy a requirement as to reasonable notice, even if such notice had been given to Mr Hannay. It could not be suggested on the facts of this case that Mr Hannay was in a position to renegotiate terms of the contract such as price. To put it very simply, notice to a person in the position of Mr Hannay would not be reasonable notice. These observations are equally applicable to the personnel in the accounts department. Obviously, every case will turn on its own facts and circumstances. Looking at the overall situation and the nature of the dealings between the parties, the Court is satisfied that the approach taken by Charleton J. in the context of this case was correct, as was the conclusion that reasonable notice of the actual terms and conditions sought to be relied on was not provided by Irish Asphalt to Elliott Construction.
Incorporation by Course of Dealing
In some cases although the standard terms have not been drawn to the attention of the contracting party before the conclusion of the contract in question, nevertheless he is bound by them because of the pre-existing course of conduct, or a common understanding between the parties. Incorporation of terms by prior course of dealing is a question of fact and degree. It depends on the number of previous contracts, how recent they are, and their similarity in terms of subject matter and the manner in which they were concluded. As Lord Pearce said in McCutcheon v. Macbrayne (David) Limited:
However, in cases where the number of transactions proved is insufficient to amount to a course of conduct, it is still possible that standard terms will be held to have been incorporated into a contract. In British Crane Hire Corp. Ltd. v. Ipswich Plant Hire Ltd., it was proved that the hirer of a crane expected that the hire would be subject to conditions imposed by the supplier. However, there was no course of dealing between the parties, and the actual terms of business of the supplier had not been drawn to the attention of the hirer before the contract was concluded. Nevertheless, the supplier’s terms were held to have been incorporated into the contract of hire. Lord Denning M.R. (with whom Megaw L.J. agreed) said:
“I would not put it so much on the course of dealing, but rather on the common understanding which is to be derived from the conduct of the parties, namely, that the hiring was to be on the terms of the plaintiffs' usual conditions.”
Sir Eric Sachs gave a slightly different reason. He said that the terms were incorporated because on the facts the supplier was entitled to conclude that the hirer accepted its conditions.”
142. The general proposition identified by Lewison, namely, that terms may be incorporated by a previous consistent course of dealing between the parties, or by their common understanding, is hardly controversial. Thus, if in the course of a consistent period of dealing, the parties to a contract entered into a series of contracts including terms and conditions, actually known to the party to be bound or drawn to their attention, and that if, on the conclusion of a subsequent contract, the party relying on the terms and conditions omitted to either draw the terms and conditions to the other party, or failed to include them on a contractual document, it would be wrong to permit the party affected by the relevant term to say that, even though they were aware of the terms and conditions, they could avoid its consequences because the relevant term was not expressly incorporated into the subsequent contract.
143. Obviously, in considering whether a party’s terms and conditions have been incorporated into a contract, it is necessary to consider the facts and circumstances of each individual case. It has already seen that in the case of Spurling referred to above, one of the factors taken into account was the course of business and conduct of the parties. In the passage previously referred to from the judgment of Denning L.J. (at p. 467 of the judgment), it was stated as follows:
145. Reference was also made in the submissions to the case of McCutcheon v. David MacBrayne Ltd  1 WLR 125, a decision of the House of Lords. In that case, the course of dealing was described as follows by Lord Reid (at p. 128):
But the circumstances of that case are not similar to the present one. There was a businessman offering a specialist service (i.e. cold storage) but accepting no responsibility for it. There the business relationship was commenced by a meeting followed by a letter, in the text of which there is no mention of standard conditions. Here there is a supplier of goods, the plaintiffs, incorporating a condition of sale via its invoices which according to the cases cited has apparently become quite common. The managing director of the defendant company said he did not read it and that he never read the small print on invoices but apparently if he had read it, it would not have made any difference to him. The invoice itself is a simple enough document. Three conditions appear on its face and they are not intimidating in complexity.
I consider that the defendants having received these invoices for fifteen months, ought reasonably to have known the terms on which the goods were supplied. In my opinion the plaintiffs gave reasonable notice of the conditions applicable to these transactions by putting them on the face of the invoices and there was no special duty on the plaintiffs to draw the defendants’ attention specifically to the retention of title clause. I therefore hold that the condition was a valid and binding condition.” (p. 401)
148. In the present case, great emphasis is placed on the fact that in the course of the dealings between Irish Asphalt and Elliott Construction, some eleven hundred and ninety delivery dockets containing the proviso “This material is sold subject to the terms and conditions available on request” were provided by Irish Asphalt to Elliott Construction and signed by a representative of Elliott Construction, usually Mr Hannay. The Court is satisfied that the terms and conditions relied on and, in particular Clause 8 of the terms and conditions, cannot be incorporated into the contract by relying on the delivery dockets alone in circumstances where those delivery dockets did not actually set out the terms and conditions and were not contractual documents. The position in this case can be contrasted with the position in many of the cases cited above, for example, Spurling, Hollier v. Rambler Motors (AMC) Ltd and Burda where the terms relied on were set out in the contractual documents. What about the position in relation to the credit notes which contained terms and conditions on the back including Clause 8 and which were undoubtedly furnished to Elliott Construction prior to the commencement of these contracts?
149. The existence of the three credit notes does not demonstrate the sort of consistent course of dealing or conduct which could result in the incorporation of terms and conditions in a contract. It is worth remembering the circumstances in which the credit notes came to light. At para. 255 of his judgment, Charleton J. observed:
150. For the reasons set out above, the Court is satisfied that, despite the very careful and extensive submissions of counsel on behalf of Irish Asphalt, the terms and conditions relied on have not been incorporated into the contract between the parties on any basis put forward by Irish Asphalt. Given that the Court is satisfied that the terms and conditions relied on by Irish Asphalt have not been incorporated into the contract between the parties, it is not necessary to consider whether Clause 8 of the terms and conditions was fair and reasonable having regard to the provisions of s. 55(4) of the 1893 Act, as inserted by s. 22 of the 1980 Act.
The Issues Arising under European Law
2. That such standard was adopted to facilitate the marketing of the product, and that, accordingly, the time at which compliance of the standard was to be assessed was first at the time of delivery of the product;
3. It was however possible by subsequent testing to prove that as of the date of delivery, the particular product did not, as a matter of probability, comply with the standard. Also since under the Construction Products Directive products were intended to satisfy the essential requirements during an economically reasonable working life, breach could be proved by evidence of testing during such lifetime;
4. That the testing protocols identified in the appendix to the standard were not, and could not be, the only method of determining compliance;
5. That the evidence here was sufficient, in light of the judge’s conclusion, that the product could not have complied with the standard on the day of delivery and later demonstrate the degree of deterioration found in 2009, to demonstrate that there had been a breach of the standard both in 2009 and as of the date of supply and therefore a breach of the contractual term requiring compliance with it;
6. The contract also incorporated a term as to merchantability pursuant to the Sale of Goods and Supply of Services Act 1980, and that the term had not been excluded by the parties though they were entitled in law to do so;
7. That the implied term as to fitness for particular purpose made known to the seller did not arise on the facts in this case, but that the evidence did establish breach of the term as to merchantability, and that the provisions relied upon by the defendant seeking to limit liability, had not been incorporated within the contract between the parties.
153. However Irish Asphalt here contend that any such conclusions are inconsistent with, and precluded by, the law of the European Union. More immediately they contend that sufficient issues have been raised to require a preliminary reference to the Court of Justice of the European Union (“CJEU”) pursuant to Article 267 of the Treaty on the Functioning of the European Union (“TFEU”).
154. As this Court is a court of final appeal, there is a mandatory obligation on it to refer questions of European law to the CJEU where the resolution of the case involves a question of European law and where the resolution of that issue is not, by virtue of the law of the European Union as interpreted by the CJEU, obvious, or as the well known phrase describes, acte clair. The test which must be applied by a national court in deciding whether a reference is required is identified in Case C-283/81 C.I.L.F.I.T. Srl & Ors v. Ministero della Sanita’  ECR 3415 (“CILFIT”). One difficulty facing national courts considering the question of whether or not to refer one or more questions to the CJEU is not merely that the threshold in CILFIT is low, but that the parties arguments inevitably focus not upon the correctness of the proposition contended for, but simply its arguability. This will often mean, in effect, seeking to establish a lack of clarity in the existing law. This test provides a perverse incentive to parties seeking references to search not for clarity, but for doubt, uncertainty and conflicting views. In this rather unreal world, the absence of any authority or academic support for a proposition becomes an argument to be deployed as to why the views of the CJEU should be obtained on, what on this argument becomes, a novel argument. This is no criticism of the exhaustive and thorough arguments advanced by Irish Asphalt in this case but rather an observation of the structure to which those arguments are required to conform,. It is necessary and important however to seek to identify with some clarity the precise arguments made which are said to be both necessary for the determination of this dispute between the parties and can be said to be not so obvious so that a reference to the CJEU is required.
155. There are two aspects of this case which Irish Asphalt contend raise issues of European law requiring a reference to the CJEU. These relate to the two separate findings of breach of contract made in the High Court: first, that the product supplied did not comply with the standard for Clause 804; and second, that it did not comply with the implied term as to merchantability, which was part of the contract between the parties by virtue of the provisions of the 1980 Act.
156. In relation to the first argument, Irish Asphalt say that the finding of breach of contract for failure to comply with the standard itself involves a question of interpretation of those standards by reference to the specific question of whether total sulphur content was specified, or available to be specified, and perhaps more comprehensively, whether the testing protocols were mandatory both as to the manner of testing and the time thereof, so that it was only possible to prove either breach or compliance at the time and by the tests contemplated by the protocols. These questions raise further questions as to the status of standards whether mandated or not adopted pursuant to the mechanisms established by the Technical Standards Directive as to such standards are law, soft or hard, and whether a standard adopted may itself be the subject of a preliminary reference under Article 267 TFEU which provides that the CJEU shall have jurisdiction to give preliminary rulings concerning the interpretation of the Treaties or the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union.
157. On the second finding of breach of contract by reference to the implied term as to merchantability, Irish Asphalt argue that the effect of the High Court Judgment, either of its own force, or by reason of the provisions of statute, has been to introduce new standards of “inertness” “durability” and “strength” which are incompatible with the standard, and furthermore have not been notified in accordance with the provisions of the Directive. Accordingly, Irish Asphalt argue that those terms must be disapplied by this Court in what it acknowledges is, a private law dispute between itself and Elliott Construction. Again, Irish Asphalt acknowledge that this would amount to the giving of limited indirect horizontal effect to a Directive but they argue that this follows unavoidably from the decisions in Case C-194/94 CIA Security International v. Signalson SA & Securitel SPRL  ECR I-2201 (“CIA”) and Case C-443/98 Unilever Italia SpA v. Central Food SpA  ECR I-7535 (“Unilever”) which were also decided in the field of standards albeit in a somewhat different context. The difficulty of this question and the degree to which it has been debated, the difference of views between the CJEU and the Advocates General in some of the decisions, means, it is said, that even if the Court were inclined to reject Irish Asphalts’s argument in this respect on grounds that to accept the argument would be to offend the general principle against indirect horizontal effect laid down in Case C-91/92 Faccini Dori v. Recreb Srl  ECR I-3325 (“Faccini Dori”), the Court could not do so without first referring the question to the CJEU. Finally, an in the particular context of this case, they point to the observations made by Weatherill in a comment upon the decision in CIA in “Breach of Directives and Breach of Contract”  26 (2) EL REV 177-186 where the author appeared to raise an issue similar to that argued by the appellants:
159. The Court is conscious of its obligation in law to refer to the CJEU any issue which properly requires reference, in accordance with the terms of Article 267 TFEU, as interpreted by the CJEU. Such a reference does not however come without costs to the litigants, this Court and indeed the CJEU itself. It inevitably delays judgment in a dispute between the parties, increases costs and necessarily increases the burden on the CJEU already labouring under an extensive workload. It is important therefore to go beyond the level of generalisations and consider with some care the precise issues arising and to determine whether conscientiously applying the decision of the CJEU in CILFIT, a question or questions arise which it is necessary to refer in order to decide the case. It follows that there may be issues on which there is a degree of uncertainty, which if squarely raised would require a reference but which on analysis, it is apparent are not necessary to decide in order to decide the case. By the same token it may be possible to decide a case on grounds of national law, or by application of EU law in relation to which there is or can be no dispute. In such cases it will not be necessary to decide contentious issues of European law which are raised in the case and therefore not necessary to refer a question.
160. It is important not to lose sight of the fact that this is a private law dispute between two private parties in respect of the quality of goods supplied by one to the other, and as it happens, wholly within this jurisdiction. The Standards and their interpretation become part of this case only because Elliott Construction ordered and agreed to buy, and Irish Asphalt agreed to supply, Clause 804 which is taken to mean a product complying with the specification in the Standards. Other than the private contractual agreements between the parties there was no other legal requirement to do so: neither Irish law nor European law required the use of product meeting the Standards. The parties could have contracted for inferior, better, or simply different, material.
161. By the same token, the terms as to merchantability and fitness for purpose are implied into the contract by statute because this was a contract for the sale of goods. Again, however, there is no sense in which, as a matter of law, these terms were imposed upon the parties against their will. Since this was not a consumer transaction, s. 55 of the 1980 Act imposed no restraint on the parties excluding, altering or modifying the terms implied by the statute. All the 1980 Act does in such a case, like its 1893 predecessor, is to set a default position against which the parties can make their own agreement. Here the default position is one which sensibly accords with the expectation of most people carrying out transactions for the sale of goods i.e. that the product will be merchantable and fit for any specific purpose if made known to the supplier. But the parties could if they wished come to some different agreement and make either more specific and demanding (or just as possibly less demanding) terms, and in each case, perhaps with a consequential adjustment of price. The implication of the terms by statute seeks to facilitate parties and therefore facilitate commerce and to provide some transparency, clarity and commercial efficacy by incorporating a term the meaning of which is reasonably clear and agreed upon and understood by buyers and sellers (even if as this case shows, there is still room for some dispute at the margins). The parties remain free to depart from that standard and agree specific terms. But where they do not do so, the legal position as a matter of Irish law is the same as if the parties here, instead of specifying Clause 804, had somewhat laboriously set out all the specifications for the product, and the method of testing in the contractual document itself, and had expressly agreed that the product would be of merchantable quality and indeed also agreed what that meant. The High Court Judge’s finding amounts in Irish law to a finding that Irish Asphalt had, albeit unwittingly, been in breach of the terms of its agreement with Elliott Construction, in that, on the High Court’s findings, it had not supplied to Elliott Construction what it had agreed to provide. This is a breach of a private law obligation and not any provision of public law.
162. Irish Asphalt’s submissions lay particular stress on the provisions of the Technical Standards Directive laying down procedure for the provision of information in the field of technical standards and regulations. That Directive was adopted in the context of the so called “new approach” to the securing of the internal market to permit the free movement of goods, services and capital. Article 1.2 of that Directive defines a technical specification as “a specification contained in a document which lays down the characteristics required of a product such as levels of quality, performance, safety or dimensions”. Standard is defined as a “technical specification approved by a recognised standardisation body for repeated or continuous application, with which compliance is not compulsory” (Article 1.4). This sub-article goes on to state that the standard could be an international, European or national standard. The Directive also defines “technical regulations” as:
163. It may be noted that the Directive seeks to achieve harmonisation of national standards and regulations by a requirement of notification by national standards setting bodies’ observation of a standstill period and an obligation to refrain from adopting national standards which are not completely in line with the existing European standards. While standards adopted by the European standards bodies are properly described as European standards in a general sense, the bodies are not institutions or bodies of the EU and are not established by the law of the EU.
164. Irish Asphalt points to European Standard EN 13242: 2000 for aggregates for unbound and hydraulically bound materials for use in civil engineering work and road construction. This is drawn up the by the European Committee for Standardisation (“CEN”) pursuant to whose internal regulations, members are obliged to given effect to the European Standard as a national standard. It relies in particular on Annex ZA described as “informative”. Annez ZA is entitled “Clauses of this European Standard addressing essential requirements or other provisions of EU Directives”. Annez ZA.1 is entitled “Scope and relevant characteristics” and it states:
The clauses of this European Standard shown in this annex meet the requirements of the mandate given under the European Construction Products Directive (89/106/EEC).
Compliance with these clauses confers a presumption of fitness of the aggregates covered by this European Standard for their intended uses indicated herein; reference should be made to the information accompanying the CE marking.
WARNING Other requirements and other EU directives, not affecting the fitness for intended uses, can be applicable to aggregates falling within the scope of this annex.
Note 1 In addition to any specific clauses relating to dangerous substance contained in this Standard there may be other requirements applicable to the products falling within its scope (e.g. transposed to European legislation and national laws, regulations and administrative provisions). In order to meet the provisions of the EU Construction Products Directives these requirements need also to be complied with when and where they apply.” (emphasis added)
166. It is a curiosity of this case (and perhaps more than that) that Irish Asphalt’s submissions focus almost entirely on the provisions of the Technical Standards Directive, and the contents of Annex ZA as creating a presumption (almost irrebuttable) of fitness for intended use. It appears to this Court however that a broader focus is necessary. It seems clear that if the presumption of fitness for intended use referred to in Annex ZA has any legal effect it cannot be by virtue of its inclusion in the Annex alone, and cannot be derived from the Technical Standards Directive. In fact, as indeed Annex ZA seems to make clear, the presumption is a consequence of the fact that the harmonised standards and aggregates were produced pursuant to a mandate issued by the European Commission on the 6th of July 1998 pursuant to the “Construction Products Directive”. The effect of a mandated standard is well described at page 493 of Chalmers et al, op. cit:
The second effect of a mandate is that compliance with the standard entitles the product to free circulation around the European Union, however, also carry a safeguarding provision, which allows a Member State to prohibit the marketing of the goods if it is liable to endanger public safety, property or the safety of animals. It must, however, immediately inform the Commission …
Unmandated standards have some legal effects. They set market expectations of safety and reliability and are often relied upon in contracts between private parties. They also give them some public recognition. In addition the General Product Safety Directive notes that an element to be taken into consideration in determining whether a product was safe is whether it meets an unmandated standard.” (emphasis added)
168. Finally in this regard, it is worth noting that the protocols for testing upon which Irish Asphalt rely (being EN932-1 test for general properties of aggregates, test for sampling EN1097-6, test for mechanical and physical properties of aggregates and EN 1744-1 test for chemical properties of aggregates), are all adopted as European standards, pursuant to the obligations imposed by membership of CEN-CENELEC (CENELEC: The European Committee for Electrotechnical Standardisation) Ireland adopted such standards as national standards without alteration. These standards however, are not mandated standards. There is no procedure established by the standards bodies for the interpretation of a standard or the resolution of any dispute as to their meaning, which accordingly becomes a matter for a court to resolve if it arises in any dispute.
169. In the light of the foregoing it is now possible to return to the issues raised by Irish Asphalt and upon which it is said a reference to the CJEU is necessary. Again, it is useful to distinguish between the issues raised in respect of the finding that the Clause 804 supplied to Elliott Construction and used in Ballymun Civic Centre did not comply with the standards for Clause 804, on the one hand, and to the finding of breach of contract on the basis that the Clause 804 was not of merchantable quality on the other.
170. There is no doubt that aspects of this case involve the interpretation of Irish Standards adopted pursuant to European Standards: first, the mandated standard in respect of aggregates (EN 13242) and second, the non- mandated standards for testing (EN 932-1, EN 1097-6 and EN 1744-1). Furthermore there was considerable argument about the proper interpretation of those Standards and how compliance or non compliance was to be established. If therefore, those Standards can be described as acts of the “institutions, bodies, offices or agencies of the Union” then it is argued that it would be appropriate to refer the question of the interpretation to the CJEU. One question which may arise here therefore is the logically anterior question of whether the standards, mandated or unmandated are, particularly in the private law context of this case, properly to be described as acts of the institutions, bodies, offices or agencies of the Union. Even then a question arises as to whether, when a standard is incorporated by parties in a private contract and breach is alleged, the interpretation of the term is a matter of European law or purely domestic law. It is said that that itself is a question which must ultimately be decided by the CJEU unless the answer to the question is so obvious as to not require reference.
171. However, the finding of breach of contract by reference to breach of the standards was only one of the basis on which the Court found that there had been a breach of contract. The High Court also found that there was a breach of the implied term of merchantability which finding this Court would as a matter of national law uphold. If there is no referable issue in relation to that determination, then Irish Asphalt’s appeal against the High Court determination would fail and it would not be necessary to consider the question of the interpretation of the standards by reference to Clause 804. Accordingly it is necessary to consider Irish Asphalt’s contention that this aspect of the case also raises issues of European law which must be referred to the CJEU.
172. Irish Asphalt rely heavily on the decisions in CIA and Unilever and the comments made in the Unilever decision by Professor Weatherill already set out at paragraph 157 above. Those cases, they say, are examples of the Technical Standards Directive having effect in litigation between private parties. Thus it is argued that this disposes of any preliminary objection that Irish Asphalt’ case involves impermissible horizontal giving impermissible horizontal effect to a Directive contrary to the decision in Faccini Dori. However CIA involved an attempt by one party to enforce the provisions of a national standard adopted in breach of the explicit requirements of the Technical Standards Directive as to publication and notification, and therefore constituted a plain breach of Article 4.2 of the Directive. Arguably therefore, the nature of the action was more important than the identity of the actor. Unilever undoubtedly involved a further step. There, the dispute was an entirely private law and contractual matter rather than one of enforcement of a national regulation. But, equally, there the Italian provision was relied on to reject the olive oil had been notified in accordance with the Directive, but the standstill period had not been observed. Again, this was a plain breach of the provisions of the Directive. Neither of these cases therefore addressed the issue which arises here which is whether the provisions of the Sale of Goods and Supply of Services Act, or those provisions as interpreted by the High Court Decision can be said to be the adoption of standard or technical regulation contrary to the provisions of the Technical Standards Directive.
173. Standing back from the intricate detail of the documents, commentary and argument in this case, it is worth considering the necessary sweep and extent of the argument made on behalf of Irish Asphalt. Counsel accepted that the argument was bold and indeed revolutionary. If Irish Asphalt’s argument is correct, then there has been a dramatic shift in the law relating to the sale and supply of goods even when involving goods sold to a consumer, and the law relating to defective products and product safety and product liability generally. Hitherto it has been a well accepted principle, not limited to the common law, that liability in contract for a defective product may arise independent of fault, and it is accordingly no defence in contract to show that a product was manufactured with care and indeed in accordance with existing best practice if the product subsequently proves defective and dangerous. It was also always possible to demonstrate in a product liability claim or a claim for negligent manufacture, that even if samples taken on supply passed scrutiny the product actually delivered was defective. By the same token it was possible to establish that the existing standard no longer accorded with best practice or the requirements of the law. Now however, if Irish Asphalt is correct the effect of the adoption of a standard is that if a product is produced in accordance with the standard then it is presumed fit for purpose, and indeed that presumption could only be rebutted with difficulty, if at all, by proof by tests at the time of manufacture and supply that the product did not in fact meet the standard (even if the testing showed that the product as defective more generally). All claims, whether contractual, tortious or statutory would be reduced to the question whether the product complied with the standard, as assessed by the tests approved, and at the time of supply.
174. The adoption and promulgation of standards has an obvious area of intersection with issues of contractual clarity, product safety and liability as indeed is illustrated by the first issue in this case in relation to the interpretation of the Standard in the context of a contractual dispute. The fact that the parties contracted for the sale and supply of a product in respect of which there is a mandated standard means that the resolution of the contractual dispute between the parties may depend upon the terms of such a standard. This is not surprising. A standard, whether national, European, or international, is after all intended to assist contracting parties in providing an agreed and standard definition as to content. Furthermore, standards are not arbitrarily chosen, but will instead aim to ensure acceptable function, safety and durability among other things. In that sense standards complement other aspects of the law addressed to market access, competition, contractual clarity, product safety and liability for defective products whether by statute or by private law of negligence or contract. It is entirely conceivable that the adoption of the standard will have some interaction with these areas of law, and may have a significant impact in practice. But while it is conceivable and indeed expected that the law relating to the adoption of standards will complement the law on product liability or consumer protection, for example, it has not been suggested until now that it supplants all that law entirely, so that all claims are reduced to a question of whether the product complied with the standard. Indeed, if Irish Asphalt is correct, then that issue in turn must be determined by the application of testing protocol at the point of supply (at a time when the product is within the possession of the supplier and its characteristics within its knowledge), rather than at the point when an alleged defect arises (when the product is in the hands of the purchaser or consumer). This would be a radical, indeed revolutionary change in a large area of the law of considerable importance not merely within Member States but in areas of law pursuing important objectives of the European Union. It must be said therefore that there is not the slightest hint in either the Technical Standards Directive or the Construction Products Directive or in the extensive commentary thereon, both official and academic, that such a dramatic alteration in the law and indeed in the relative positions of producer and purchaser and user, was to be contemplated.
175. Approaching this issue at the more precise level of the terms of the relevant instruments, it becomes important to consider once more the relative importance in this case of the Technical Standards Directive when compared with the Construction Products Directive. In our view, the Construction Products Directive is of particular importance, albeit that it did not feature significantly in the argument on behalf of Irish Asphalt. The Technical Standards Directive relates to all technical standards, whether mandated or not, and imposes obligations important but limited, of notification, publication, circulation and standstill pending consideration of the documents. It does not however say anything about the legal significance of the adoption of a standard. It is the Construction Products Directive which contemplates mandated standards, and confers upon products complying with such mandated standards certain legal consequences. In particular, compliance with the mandated standards creates a presumption, relied upon in this case by Irish Asphalt, of fitness for intended use. It is to be noted that EN 13242 is a mandated standard whereas the testing standards EN932-1, EN1097-6 EN17434-1 are not.
176. When considered closely, it seems apparent that the Construction Products Directive appears intended to operate entirely in the area of access to the market. This is apparent from a number of the recitals which, for example, identify as an impetus for the adoption of the Directive, paragraph 71 of the “White Paper on Completing the Internal Market” approved by the European Council in June 1985 which placed emphasis on certain sectors including construction, and that the removal of technical barriers in the construction field called for a definition of the essential requirements to which construction works must comply. The recital further states:
Whereas products thus considered fit for use are easily recognizable by the EC mark; whereas they must be allowed free movement and free use for their intended purpose throughout the Community”. (emphasis added)
179. Even if the Construction Products Directive concept of “fitness for intended use” is capable of being taken out of its legal context, and because of a verbal similarity to the time honoured phrase “fitness for purpose” derived from the 1893 Act considered to create some presumption of fitness for purpose pursuant to a term implied under the 1980 Act, then the implemented Directive still only creates a presumption of fitness such purpose, which in this case can be said to have been comprehensively rebutted on the evidence. Irish Asphalt argue that the presumption could only be rebutted by proof of non compliance with the Standard and thus by the tests set out in the testing protocol (and thus recycling the argument as to proof of compliance with the standards). However there is if anything greater difficulty in accepting this. The presumption is of fitness for intended use, not compliance with the Standard. Indeed, if Irish Asphalt is correct, and the only method of rebuttal of the presumption is proof of non compliance with the Standard, then, logically, that would mean that the presumption does not properly arise, not that it arose but was been rebutted. At its highest therefore Irish Asphalt’s argument in this regard seems to be that proof of compliance with a mandated standard creates a presumption of fitness for purpose for the purposes of the implied term as to merchantability. But fitness for purpose may be disproved and the presumption rebutted by proof that the product was not in fact fit for purpose. This does not appear sufficient for Irish Asphalt in this case.
180. It is necessary here to advert to a further potentially complicating argument relating to the question of a limit for sulphur discussed above and considered at paragraphs 111 to 124 as to whether a limit of 1% for sulphur is specified by, or pursuant to, the standard EN13242:2002. While for reasons already discussed it is not necessary for Elliot Construction to establish the existence of such a limit to prove its case, it may be relevant to the claim made by Irish Asphalt in relation to the effect of the presumption. The trial judge found that a limit for sulphur was established by a guidance note to Standard EN13242:2002 which was issued by the NSAI in 2004: S.R.21:2004: “Guidance on the use of I.S. EN13242:2002 - Aggregates For Unbound and Hydraulically Bound Materials For Use in Civil Engineering Work and Road Construction”. It is clear that Irish Asphalt did not test for the presence of sulphur, consistent perhaps with the contention that no such limit was specified. If a limit was specified and not tested for, it might be argued that, even if Irish Asphalt was correct in every part of its argument, it would not avail it, because it could not show compliance with the standard such as to enable it to rely on the presumption contained in Annex ZA. That in turn may however depend upon an interpretation of the European standard which Irish Asphalt contends is a matter upon which a reference is necessary.
181. Turning to the Technical Standards Directive, upon which Irish Asphalt place more reliance, it is noteworthy that the legal obligations contained therein, addressed to Member States, apply in the context of the adoption of national standards or regulations. Member States must notify and publicise the adoption of a national standard and allow for a standstill period for a national implementation to allow for the possibility of consultation and/or the consideration of the adoption of a European standard. It is these obligations (publication notification and standstill) that were breached by Belgium and Italy in CIA and Unilever respectively. Looked at in this way and leaving aside the controversy as to indirect horizontal effect, the decisions are relatively straightforward in that they seek to insist upon the performance by the Member States of the notification and standstill obligations placed upon them by the law of the EU. However, those decisions do not go so far as to suggest that they can be applied, outside the field of the adoption of national standards or regulations, to pre-existing law on the sale of goods and court decisions interpreting such laws in the context of a private contractual dispute. There was perhaps understandably, a certain lack of clarity in Irish Asphalt’s submissions when pressed to explain how the situation in this case could be brought within the template of this CIA/Unilever line of authority or any plausible extension thereof. In particular what was the standard or regulation alleged to have been adopted in breach of the obligations imposed under the Technical Standards Directive which should lead to the reversal of the High Court Decision? By whom was the standard or regulation adopted: the High Court (or indeed this Court) in a decision on the interpretation of the term implied into the contract between the parties, or the Oireachtas when it permitted the implication of a term in the contract, most recently by the terms of the 1980 Act albeit in this respect essentially re-enacting the provisions of the 1893 Act? In either case, what is it that can be said to be a breach of Ireland’s obligations under the Directive?
182. Approached at this level, it must be said that it seems difficult to bring this case within the terms or structure of the Technical Standards Directive. It seems that the decision of the High Court cannot be considered to be the adoption of a standard requiring notification and standstill pursuant to the Directive. The Directive does not appear to contemplate or provide for a procedure in the context of judicial proceedings such as these. It seems clear that the High Court cannot be said to be a national “standardisation body” identified in Annex 2 to the Directive to whom the obligation of notification is addressed, nor can its decision be said to be a “technical specification approved by a recognised standardisation body.” A judgment, even a draft judgment, could not be said to be a “draft standard containing the text of a technical specification concerning a given subject which is being considered for adoption in accordance with the national standard procedure” which is required to be notified. In any event, as a matter of law, the decision of the High Court and indeed this Court, is no more than the interpretation and application of requirements of the 1980 statute.
183. It also seems that the 1980 Act cannot itself be considered a “standard” for the purposes of the Technical Standards Directive. It is not a “technical specification” approved by a recognised standardisation body for repeated or continuous application with which compliance is not compulsory. It was argued therefore that it amounted to a technical regulation. But such regulations are (as previously stated):
184. This Court is however conscious that in the context of considering a reference it should not adopt too narrow a reading of the Technical Standards Directive, or indeed the decisions of the CJEU. Furthermore, it should consider the issue of a reference to the CJEU by engaging in the sometimes difficult task of considering hypothetical arguments, and whether they might conceivably be considered meritorious in some Member States. While the Court has some difficulty in accepting that that argument by reference to the law of the European Union can lead to a result where Irish Asphalt succeeds in this appeal, Irish Asphalt has raised a number of issues which cannot be said to be so clear or self evident as to not require a reference, applying the low threshold established by CILFIT, and the Court cannot in conscience rule out the possibility that such issues either separately or cumulatively might at some level be capable of being resolved in a manner that could have some impact on the outcome of the case. Accordingly, the Court considers itself obliged to make a reference pursuant to Article 267 TFEU.
185. It is necessary finally to acknowledge the very considerable assistance the Court received from the submissions made. In this case the papers prepared for this Court were extremely extensive given not only the lengthy hearing in the High Court, but the very detailed and complex legal arguments submitted on this appeal. The preparation of papers for this Court was exemplary. The papers and particularly the authorities and materials were organised by reference to individual issues in a logical fashion clearly labelled and indexed and the relevant extracts clearly highlighted. Considerable thought went into the planning, preparation and presentation of the books submitted to the Court and achieved a standard which all parties with appeals to this Court should be able to meet but rarely do. It is a regrettable fact that this Court is often presented with badly planned, poorly organised and often irrelevant material supplemented by a flurry of last minute documentation which make the case more difficult for the Court, and the parties. That should not be acceptable in any court but particularly in a court of final appeal. When papers are prepared to a high standard that also deserves comment, acknowledgement and appreciation from the Court.