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Can you prove which terms and conditions you sold on? If your terms only reach the customer on the back of an invoice, and years later all you can produce is a reprint, possibly not, and that’s a large part of why Amtico failed to get rid of a claim over failed flooring which, on its own figures, its terms might have capped at under £19,000.
The case is Loughton Contracts plc v The Amtico Company Ltd [2026] EWHC 2814 (TCC), decided by Mr Justice Constable in the Technology and Construction Court on 3 November 2026. It was an application for summary judgment and strike out at a very early stage, so nothing has been decided about whether the flooring was defective or whether Amtico’s terms apply; the judge decided only that those questions can’t be settled without disclosure and proper evidence.
What happened
Amtico supplied flooring which Loughton, a flooring contractor, installed at residential developments at Wembley Park between 2018 and 2020 for the main contractor, McLaren. The flooring failed, and McLaren says Loughton is responsible for replacement costs of about £2.9 million, although it hasn’t actually issued proceedings yet.
Loughton issued a claim against Amtico in October 2025 to protect its position on limitation, but it hadn’t followed the pre-action protocol for construction disputes and it didn’t serve particulars of claim when they fell due in January 2026. It obtained a stay until October 2026 and then asked for another six months, and Amtico responded by asking the court to strike the claim out or give it summary judgment.
Amtico’s defences
On paper Amtico had a strong hand. A claim for breach of contract over defective goods normally runs from delivery, and under section 5 of the Limitation Act 1980 there are six years to sue, so anything delivered before 15 October 2019 looked out of time (I’ve written more generally about how long you have to sue for breach of contract). On Amtico’s order records that covered 97% of the orders, leaving 18 orders worth £18,677.95, and that figure mattered because its terms then capped its liability at the contract price, excluded indirect and consequential loss and third party claims, and said no action could be brought more than two years after the buyer became aware, or ought to have become aware, of the circumstances giving rise to it, so on Amtico’s case the claim was worth about £18,700 at most, or nothing if the two-year clause applied.
Why the application failed
The limitation point fell down on evidence that Amtico probably had. Its records showed when delivery was due rather than when it happened, and although the nearest due dates were a month or two before the cut-off, the judge wasn’t prepared to assume every delivery was on time when invoice dates, payment dates and Amtico’s own delivery receipts would probably have settled the point and hadn’t been put before the court. He did say a significant part of the claim looked likely to face limitation difficulties at trial.
Proving the terms was harder still. Amtico’s evidence was that Loughton sent a purchase order, Amtico sent an order acknowledgement with no terms on it, and the terms then arrived printed on the invoice posted after shipment. Terms that turn up only after a contract has been made don’t normally become part of that contract, although they can become part of later contracts through a regular and consistent course of dealing, and that was Amtico’s case.
The difficulty was showing what Loughton actually received. Amtico’s solicitor first exhibited one set of terms for 2018 to 2020, and the invoices produced later carried a different version, with extra clauses including one headed “Brexit”. The invoices were reprints marked “DUPLICATE”, with different bank details from the order acknowledgements and, in one case, a different purchase order number. The invoice version of the terms also said the contract included a “flooring specialist agreement” and a customer account application form, neither of which was before the court; Amtico’s barrister said on instructions that they weren’t relevant, but the judge wouldn’t decide the point on that basis.
The judge was careful to say these points shouldn’t be overstated, as nobody had contradicted Amtico’s evidence about how the two companies dealt with each other and Loughton hadn’t said any other terms applied, but on a summary judgment application the uncertainty was enough to send the question to trial.
Reasonableness under the Unfair Contract Terms Act
Even assuming the terms were incorporated, they were Amtico’s written standard terms of business, so under section 3 of the Unfair Contract Terms Act 1977 the cap and the exclusions only work if they satisfy the requirement of reasonableness, and section 11(5) puts the burden of showing that on the party relying on them. Amtico hadn’t served any evidence on reasonableness, so the judge couldn’t say Loughton had no real prospect of defeating the clauses. He relied on the Court of Appeal in Last Bus Ltd v Dawsongroup Bus and Coach Ltd [2023] EWCA Civ 1297, which said reasonableness is a fact-sensitive question that will ordinarily need a trial.
None of this means the cap is unenforceable. I’ve written about an exclusion clause that reduced a £7m claim to nothing, which shows how effective a cap can be once it’s shown to apply and to be reasonable; Amtico simply hadn’t done either yet.
Loughton’s procedural failures
The judge was critical of Loughton too, finding that its failure to serve particulars on time, or to ask for more time before the deadline, was serious and significant, and saying of its explanation (that it wanted to wait for McLaren) that “This is plainly a reason. It is not a good reason.” It was still granted relief, largely because a court-ordered stay had covered most of the period and because striking the claim out might have stopped it suing again on claims that weren’t time-barred when it issued. It didn’t get its further six-month stay, though, as the judge wants the case pleaded and the delivery dates and the cap looked at properly.
What to do if you sell on standard terms
Check how your terms actually reach your customers. If they first appear on the invoice, they arrive too late for the first contract and you’re relying on a course of dealing that you may one day have to prove, so it’s better to have them accepted before the contract is made, on the quote, the order acknowledgement or the account application form, with the customer signing or clicking to accept them. Keep a dated copy of every version and a note of when each was in use, and keep copies of what you actually sent rather than relying on being able to reprint it. If your terms refer to other documents, make sure those documents exist and can be found.
If you rely on a liability cap, think now about why the figure is reasonable for your business, looking at things like the price you charge, whether you could insure the risk and how much choice the customer had, because that is what a court will look at. On the buying side, remember that a contract claim over defective goods usually runs from delivery, not from when the defect shows itself, so on long projects the six years can run out before anyone realises there’s a problem.
I draft and review terms and conditions and supply contracts for owner-managed businesses. I don’t run litigation myself; those claims go to my Nexa colleagues who handle contract disputes. Get in touch if you need some help.
Written by Steven Mather, a business solicitor acting on company sales and purchases. This is general information about the law, not legal advice on your situation. Law correct as at .
