Case No. HT-08-331

[2002] BLR 217. The requirement that all the terms of the construction contract have to be in writing has been criticised. The requirement, transferred word for word directly from s.5 of the Arbitration Act 1996, which requires the arbitration agreement and certain other agreements to be in writing, is evidently necessary where the effect of the arbitration agreement is to deprive the court of jurisdiction and other agreements have the effect of varying the non-mandatory provisions of the Arbitration Act 1996. While it is possible to explain the requirement that all the terms of a construction contract have to be in writing in terms of the need to have certainty, it has proved an impracticable requirement which has given rise to a number of challenges to enforcement of adjudicator’s decisions. It is now the subject of a draft Bill which will seek to repeal that provision. Until that happens, the law is that the provisions of s.107 fall to be applied. 32.Were all the terms of the contract in writing or evidenced in writing in the current case? Mr Stansfield submits that all the terms were evidenced in writing and are included in a document with the title, “Subcontract pre-contract interview notes” signed by the parties in February 2007. I will refer to those as “the meeting notes”. In the adjudication, ROK sought to challenge jurisdiction on the basis that the meeting notes stated at the beginning the following:“The notes on their own do not constitute an offer [or] acceptance unless it is issued as part of a formal subcontract and were not a construction contract.”33.The adjudicator held that this did not preclude there being a contract which was evidenced by these meeting notes. The matter has, however, developed further before me. Mr Lee accepts that all the terms apart from the terms as to work scope were evidenced in writing by the meeting notes. He says that terms as to what work had to be carried out and where had to be agreed and that the notes do not contain the necessary terms. It is evident that the work scope is not fully defined within the meeting notes. Those notes refer to the project name being Harlow Decent Homes, Brenthall Towers and to the works being kitchen and bathroom fitting, with associated builders’ works. Under paragraph 8.0, Programme, it is stated that the date for commencement of the subcontract works on site will be between certain dates. It refers to work at Potter Street, as apparently being completed, and, “Old Harlow, phase 2” as commencing between 31st August 2006 and ongoing. These are not self-evidently limited to works at Brenthall Towers. It refers to further information to be submitted to the subcontractor within a reasonable time prior to commencement of works, and to the period required for notice to commence works in any section on site as being five days. Under a title of, “Brenthall Towers” there is a general description of kitchen and bathroom works and a statement: “Kitchen, sum of £2,286.80 plus VAT and bathroom sum of £1,935 plus VAT.”34.Under the title of Any other matters discussed, it states: “All instructions for additional works as per submitted SORs [schedule of rates].”35.It is evident that a full description of all works which PTB were to carry out is not contained in the notes of the meeting. However, the meeting notes envisaged that PTB would be provided with additional information prior to commencement of works and that instructions would be given for additional works. The terms of the agreement do not, in my view, limit the timing or scope of those instructions or the place where the work was to be carried out. Where a contract contains express terms which provide that a party will provide the other party with information about the works and will give instructions for additional works, then, in my judgment, there is no need for the scope of the works to be fully set out in or evidenced in writing in the underlying contract. The relevant contract term is in writing or evidenced in writing and the fact that it envisages performance taking place by further information or instructions, which may be oral or in writing, does not effect the fact that the relevant contract term itself was in writing or evidenced in writing. 36.Mr Lee referred me to the decision of his Honour Judge Coulson, Q.C, as he then was, in