Case No. HT-08-331

[2007] BLR 30, in which he dealt with a case where there had been a letter of intent. One of the grounds on which it was said that there was no construction contract in writing was because the work scope had not been defined. At paragraph 61 of his judgment, Judge Coulson said this:“However, the biggest difficulty comes with the consideration of the contract work scope. The work scope, according to the letter, is work which will or might be the subject of orders in the future, whether written or oral. That might be sufficient for a binding contract, although I do not think it is, and, as I have indicated, enforcement of it would be next to impossible. More importantly, such a definition of work scope is a recipe for confusion and dispute of the very sort which s.107(2)(c) is designed to avoid. This point can be emphasized by reference to Hart's own pleading in this case. In paragraph 3 of the particulars of claim Hart defined the contractual work scope as including: ‘The retention and preservation of the front and side facades of the property, the removal of the main part of the building and the construction of the basement and the reconstruction of the building above the new constructed basement area.’ This work scope is plainly not discernible from the letter of intent. It is based on subsequent orders, instructions and the like, which may or may not have been reduced to writing. If the contract document does not even begin to define the contract work scope, it seems to me impossible to say that all the terms, or even all the material terms, are set out in writing.”37.Evidently, on the terms of that letter of intent Judge Coulson held that the terms of the work scope were not sufficiently contained in or evidenced in writing, on the facts of that case. In the present case, there was some work scope defined within the meeting notes, but that work scope was to be the subject of further information and instructions, both to commence and in terms of instructions given under the terms of the meeting notes. All these terms were evidenced in writing. I consider that, as a result, such a case as this does come within s.107 and is a valid contract in writing. 38.In the present case, were there terms which were agreed but which were not evidenced in writing? The way in which matters proceeded is described in Mr Dauncey's witness statement submitted on behalf of ROK. He says this at paragraphs 8 and following:“ROK deny that [the Meeting Notes are] sufficient to fulfil the requirements of the HGCRA. It is clearly not a document that was intended by itself to form the subcontract. The notes were intended to be incorporated into a formal subcontract in due course in the event that a subcontract was awarded to PTB. Although it was anticipated that further terms and conditions would be discussed and that the interview notes would be incorporated into that subcontract, this did not happen. Instead, when ROK had packages of Decent Homes work in Brenthall Towers that it wanted to subcontract to PTB, separate instructions were issued to PTB and the scope of work to any particular property was defined by a combination of documents and oral site instructions. Although the interview of the 15 February 2007 concerned kitchen and bathroom works at Brenthall Towers as part of the Decent Homes Project, ROK was awarded such work to a wider range of properties and, with later agreement of PTB, ROK gave further packages of work to PTB. Over the following months PTB’s work was extended over many different properties. ROK accept that, while there is no written contract in respect of these works, it was agreed orally that these were to be valued and paid on the same basis as the kitchen and bathroom works in Brenthall Towers (those rates being revised by agreement between PTB and ROK from 1 January 2008). … There is not, in my view, a sub-contract of which it can be said that all the terms are in or evidenced in writing, whether in the notes of the interview that took place on 15 February 2008 or otherwise. This is emphasized further by the reference to the “Final Account” that PTB provided, for the first time, with the Notice of Adjudication on 20 August 2008. Within that account is a whole collection of works, some from Brenthall Towers Decent Homes (which was the subject of the meeting on 15 February 2007) and many from further kitchen and bathrooms work as part of the broader Harlow Decent Homes project that ROK was carrying out for Harlow District Council. Also within PTB's account are claims for payment in respect of work which is wholly unrelated and which cannot be related back to the meeting on 15 February 2007 in any shape or form, nor to any instruction that was issued by ROK in any extension of that work from Brenthall Towers to other Harlow Decent Homes kitchen and bathroom works.”39.He then refers to work on void properties and to work for Kier and Harlow District Council in respect of separate work at Harlow, for work to the Decent Homes standard. He also refers to work at Highgate and to work at Barley Croft. In respect of each of those, he indicates that there was a separate subcontract which arose from instructions being given to PTB. 40.Mr Stansfield relied on further documents as evidencing the construction contract, including these works. First, there was the document referred to as PTB rates, application as of January 2008, which contained a breakdown of “All-in basket scope of works” showing that the rates were to be applied for all work from that date. Secondly, he refers to letters dated 5 and 18 March 2008 by which ROK requested that PTB should include applications for all properties in its applications for the Harlow Decent Homes project. Thirdly, he relies on an exchange of emails in June 2008, which are referred to further below. This led to the process which culminated in the production of the final account document which was attached to the notice of adjudication dated 20 August 2008. 41.The provisions of s.107(4) of the 1996 refer to an agreement being evidenced in writing “if an agreement made otherwise than in writing is recorded by one of the parties.” There is no need for the agreement to be recorded in one document, nor is there a requirement for when the record is to be made. In this case, it is common ground that the meeting notes contain all the provisions except those relating to work scope. I consider that the work scope is dealt with by the instruction of work under the terms which are sufficiently recorded in the signed meeting notes. In any event, the documents relied on by Mr Stansfield record the revised all-in basket rates which formed the basis of the phase 2 claims. Further, the discussions between the parties and the documents produced by PTB sufficiently record the scope of the works to the extent that this might be necessary. 42.As a result, I consider that all the terms of the construction contract are sufficiently recorded in writing to give rise to a contract evidenced in writing within s.107 of the Act and that ROK's defence to enforcement has no real prospect of success on that ground.