Building contract – Refurbishment works – Dispute – Claimant acknowledging agreement by letter but no formal written contract – Adjudicator making award in claimant’s favour – Defendant failing to pay – Claimant applying for summary judgment – Whether adjudicator having jurisdiction to make award – Whether award enforceable – Application dismissed
The defendant contractor was engaged to carry out extensive building and refurbishment works on a development project. The claimant was a firm of civil and structural engineers that provided certain design and build services.
On 11 September 2006, the claimant wrote to the defendants outlining the services it would provide and acknowledging receipt of changes that had been made to the work specification by the defendant’s representative. Between November 2006 and October 2007, the claimant issued five invoices, totalling £31,420, in respect of work carried out. A dispute arose regarding the claimant’s entitlement to be paid and it gave notice to the defendant, under the Housing Grants, Construction and Regeneration Act 1996, of its intention to refer the matter for adjudication.
The adjudicator made an award in the claimant’s favour. The defendant failed to pay and the claimant subsequently sought to enforce the award by applying to the court for summary judgment under CPR 24. The defendant contended that the scope of the work and the claimant’s charges had not been agreed such that there was no agreement in writing for the purpose of section 107 of the 1996 Act. Accordingly, the section 108 statutory adjudication scheme could not be implied into the contract between the parties and, thus, the adjudicator had no jurisdiction in the matter.
The claimant relied, inter alia, on section 15 the Supply of Goods ad Services Act 1982 as implying a term that a reasonable charge would be made for the services it had rendered and argued that, in that case, the contract satisfied the requirements of section 107 of the 1996 Act.
Held: The application was dismissed.
This was not an appropriate case for summary judgment. There was no evidence in writing regarding the scope of the works specified by the defendant or the charges to be made by the claimant, and the contract did not comply with section 107 of the 1996 Act. It was arguable that the adjudicator did not have jurisdiction to deal with the matter and, accordingly, the court would give leave to defend.
Although circumstances might arise in which a term could be implied under section 15 of the 1982 Act in respect of the payment of a reasonable charge for services rendered, such circumstances did not do so in the instant case, where the claimant was seeking to rely upon the statutory adjudication scheme in the 1996 Act rather than adjudication provisions in the contract itself.
It was possible to imply the statutory scheme only into a written contract within the meaning of section 107 of the 1996 Act; in order to come within that provision, all express terms had to be recorded in writing: RJT Consulting Engineers Ltd v DM Engineering (Northern Ireland) Ltd [2002] EWCA Civ 270; [2002] 1 WLR 2344 applied.
Peter Stockhill, of Berrymans Lace Mawer, appeared for the claimant; Marc Lixenberg (instructed by Seddons) appeared for the defendant.
Eileen O’Grady, barrister
