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 by the parties, is made in writing. That must mean where the agreement is contained in a written document which stands as a record of the agreement and all that was contained in the agreement. The second category, an exchange of communications in writing, likewise is capable of containing all that needs to be known about the agreement. One is therefore led to believe by what used to be known as the eiusdem generis rule that the third category will be to the same effect namely that the evidence in writing is evidence of the whole agreement.
Sub-section (3) is consistent with that view. Where the parties agree by reference to terms which are in writing, the legislature is envisaging that all of the material terms are in writing and that the oral agreement refers to that written record.
Sub-section (4) allows an agreement to be evidenced in writing if it (the agreement) is recorded by one of the parties or by a third party with the authority of the parties to the agreement. What is there contemplated is, thus, a record (which by sub-section (6) can be in writing or a record by any means) of everything which has been said. Again it is a record of the whole agreement.’ and ‘On the point of construction of section 107, what has to be evidenced in writing is, literally, the agreement, which means all of it, not part of it. A record of the agreement also suggests a complete agreement, not a partial one. . . It must be remembered that by virtue of section 107(1) the need for an agreement in writing is the precondition for the application of the other provisions of Part II of the Act, not just the jurisdictional threshold for a reference to adjudication. I say ‘unfortunately’ because, like Auld L.J. whose judgment I have now read in draft, I would regard it as a pity if too much ‘jurisdictional wrangling’ were to limit the opportunities for expeditious adjudication having an interim effect only. No doubt adjudicators will be robust in excluding the trivial from the ambit of the agreement and the matter must be entrusted to their common sense. ‘
Lords Justice Auld, Ward and Robert Walker
Gazette 11-Apr-2002, [2002] CILL 1841, (2002) 18 Const LJ 425, [2002] TCLR 21, 83 Con LR 99, [2002] EWCA Civ 270, [2002] CLC 905, [2002] 1 WLR 2344, [2002] BLR 217
Bailii
Housing Grants, Construction and Regeneration Act 1996 107
England and Wales
Cited by:
Followed – 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 – Allen Wilson Joinery Ltd v Privetgrange Construction Ltd TCC 17-Nov-2008
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 . .
Lists of cited by and citing cases may be incomplete.
Construction, Contract, Arbitration
Leading Case
Updated: 01 November 2021; Ref: scu.170039