The NEC form of contract is a tad shy when it comes to identifying which documents form part of the contract. It is also shy when it comes to the order of priority between the various contract documents. Parties, therefore, often tinker with the standard form to list the contract documents and include a priority clause.

If there is a difference, no matter how slight, between the various documents, parties are quick to turn to the priority clause to see which document is considered to be the ‘top dog’. They then interpret the contract in accordance with the ‘top dog’. Priority clauses, however, do not operate like that. This was spelled out by Mr Justice Akenhead earlier this year. In RWE Npower Renewables Limited v J N Bentley Limited [2013] EWHC 978 (TCC), he reminded us that where there is no material ambiguity between various documents, the priority clause is redundant. The parties should look at all the contract as a whole to determine the meaning. The judge confirmed that you should only turn to the priority clause if there is an irreconcilable ambiguity between documents. He gave the example of one document requiring a house to be painted white and another requiring it to be painted black. From this example, it is important to know which document is the ‘top dog’.

So, priority clauses can be helpful where there are irreconcilable differences between documents. For minor wrinkles, there’s no need to determine who is ‘top dog’. Look at the contract as a whole.