Roger Ter Haar KC’s decision in Jaevee Homes Ltd v Fincham [2025] EWHC 942 (TCC) is definitely a judgment for those Legal Notes readers who like their contract law on the quirky side. The dispute related to a contract for demolition works at a nightclub in Norwich. J was the developer and F was the contractor.
The judge held that a construction contract between J and F (and therefore one which was caught by the Housing Grants, Construction and Regeneration Act 1996) had validly been agreed using WhatsApp, with the Scheme for Construction Contracts (England and Wales) Regulations 1998 implying any additional terms necessary to make the contract compliant with the 1996 Act.
The deputy judge also made some consequential findings regarding the validity of invoices (three out of the four submitted were payable) and whether they counted as payment notices for the Act or the Scheme (they did). F was therefore entitled to be paid just over £150,000.
My usual practice when writing a Legal Note is briefly to cover the facts and the decision and then look to explain the legal consequences. In this instance, however, I would like to try something slightly different: having given (an admittedly concise) summary of the facts and decision, I want to concentrate on the fascinating part of the case (at least for a 50-something sometimes bemused by technology) – the fact that the contract was agreed using WhatsApp.
What agreement?
In early 2023, J approached F to perform demolition work at the site. There was a meeting late in April and an exchange of e-mails in early May regarding a scope and price. No agreement was reached and between 12 and 17 May, there were both WhatsApp messages and e-mails between J’s managing director, Ben James, and F. Some of the e-mails were sent from an e-mail address for a different business to J. The deputy judge did not think that this was a relevant factor – as J argued – as to why no contact could have been said to have been agreed by WhatsApp.
Instead, it was the WhatsApp messages exchanged on 17 May 2023 that constituted the contract. These are the relevant messages:
F: “Hi Ben How did you get on mate. Is the job mine mate?”
James: “Can you start on Monday?”
F: “I can start with getting the scaffolding sorted and stuff on Monday… but men will start the following Monday… Ben, are we saying it’s my job mate so I can start getting organised mate.”
James: “Yes.”
The deputy judge concluded that the last two messages were “redolent of a concluded agreement”: there was an agreed scope of work, for an agreed price, with F starting work as soon as possible.
Nine days later (and after F had started performing the contract), J emailed F a zip file full of contract documents, including J’s standard terms. There was no acceptance of these revised terms by F and the deputy judge was satisfied, on a traditional battle of the forms analysis (including relying on Dyson LJ’s judgment in Tekdata Interconnections Ltd v Amphenol Ltd [2009] EWCA Civ 1209), that because F had made an offer which J accepted and performance then followed, the contract was agreed.
What payment?
The WhatsApp conversation also contained an agreement that F could submit applications for payment every 28-30 days:
James: “Monthly applications”
F: “Are you saying every 28 or 30 days from invoice, that’s a yes not on draw downs then good… Thanks mate appreciated Ben.”
“Not on draw downs” referred to a previous project where J had delayed payment awaiting bank draw downs. The deputy judge held that paragraph 2 of the Scheme allowed for J to submit an invoice at any stage during the monthly cycle. Relying in particular on the summary of the caselaw in Advance JV v Enisca Ltd [2022] EWHC 1152 (TCC), especially that the courts will take a practical approach to assessing the validity of payment notices and dismiss technical objections, he also held that the invoices were valid payment notices for the purposes of the 1996 Act.
However, because F was only allowed to submit one invoice each month, the deputy judge disallowed the one invoice submitted outside of that monthly cycle.
What’s next?
When I first read the case, my initial reaction was surprise that the courts had upheld a contract agreed by WhatsApp. But, thinking about it, I shouldn’t have been, not least because I have used WhatsApp (and text) to agree contracts in my personal life and I happily use a variety of well-known apps to book travel tickets and order takeaways.
I suspect that the courts will see an increasing number of cases where they need to decide contractual issues recorded in or agreed by social media or the variety of communication options we all have on our phones.
The key point to bear in mind is that courts decide these issues by the evidence presented to them, so do please keep accurate records. And, if you are in any doubt, it might be helpful to confirm the agreement that has been reached by email or in writing. But, remember that you should be confirming that agreement and not, as J tried to do, rewriting it.
Stuart Pemble is a partner at Mills & Reeve
