The High Court agreed with Socofi’s application and said the AEL/DAM jurisdiction clause had not been incorporated with AEL/Socofi. The matter depended on the intentions of the parties. However, the precedent cases showed that when looking at whether a jurisdiction clause had been incorporated and accepted, there was a crucial distinction. Where the clause purportedly being incorporated was contained within standard terms and conditions, the clause could be incorporated even where one party had not seen the terms and conditions; however, where it was contained within another contract, the rules were stricter and only those terms that were closely related to the parties’ agreement would be incorporated by general words of incorporation. In this case, the primary purpose of the correspondence was to identify the services and cost and there were no express words dealing with incorporating the jurisdiction clause. Therefore, it was not incorporated.

Paul Gershlick, a Partner at Matthew Arnold & Baldwin LLP and editor of www.Upload-IT.com, comments: ‘This case provides two lessons. Firstly, be absolutely clear if you are referring to another contract and you want a particular clause to apply. More widely, though, be clear what you are signing up to and don’t just refer to another contract; that other contract may contain all sorts of provisions, some of which may apply depending on the legal rules of what sort of document it is.’