The claimant sought summary judgment to enforce an arbitration award in a construction dispute. The defendants argued that the contract was not sufficiently evidenced in writing to accord with the 1996 Act. The claimants replied that any oral variations were trivial.
Held: Akenhead J set out the requirements for writing as follows: ‘(a) For there to be a construction contract in writing for the purposes of Section 107 and Part II of the HGCRA, all the terms of the contract must be in writing and recorded in one of the ways set out in Section 107.
(b) Whilst adjudicators (and indeed judges) should be robust in determining whether trivial matters said to have been agreed only orally between the parties can prevent what would otherwise be a written contract for the purpose of Section 107 being a written contract, the exercise of determining what is trivial must be an objective one in relation to the particular contract and parties concerned. What may be ‘trivial’ in one contract may not be in another. Thus, for example, an oral agreement on a million pound project as to which of two mildly differing shades of light blue paint might be used may be trivial on one development but not on another.
(c) It is always necessary to determine whether a so-called agreement made orally was in reality expected or intended to be binding as between the parties. Thus, the parties having discussed and agreed something orally might later have reduced their agreement into writing in such a way as to supersede the earlier oral agreement. A later oral agreement may not be binding; for instance, it may lack consideration or otherwise may not be intended to be binding.’
Implied terms are placed in a contract by operation of law, and do not make the contract as whole not in writing. However in this case there was a triable issue as to whether some terms were sufficiently serious to mean that the contract was not in writing as required.
Akenhead J
[2008] EWHC 2802 (TCC), [2009] TCLR 1, 123 Con LR 1
Bailii
Housing Grants, Construction and Regeneration Act 1996 107
England and Wales
Citing:
Cited – RJT Consulting Engineers Ltd v DM Engineering (NI) Ltd CA 8-Mar-2002
The court considered what would amount to a contract in writing under the 1996 Act. Ward LJ said: ‘Section 107(2) gives three categories where the agreement is to be treated in writing. The first is where the agreement, whether or not it is signed . .
Cited – Trustees of the Stratfield SAYE Estate v AHL Construction Limited TCC 6-Dec-2004
The court was asked what was meant by a contract in writing under section 10. Jackson J applied RJT saying: ‘The principle of law which I derive from the majority judgments in RJT is this: an agreement is only evidenced in writing for the purposes . .
Cited – Connex South Eastern Ltd v MJ Building Services Group Plc TCC 25-Jun-2004
The court was asked whether the existence of implied terms converts an otherwise written construction contract into one that is no longer a written contract for the purposes of Section 107. Richard Havery QC J said: ‘The first question I must . .
Cited – Galliford Try Infrastructure Ltd and Another v Mott Macdonald Ltd TCC 17-Jul-2008
The court was asked whether the implication of terms into a written contract implied that it was not a contract in writing under ection 107. HHJ Seymour QC said: ‘it may be necessary to consider carefully the effect of s. 107 of the 1996 Act as . .
Lists of cited by and citing cases may be incomplete.
Construction, Contract
Updated: 01 November 2021; Ref: scu.277879