HT-2024-000423 - [2025] EWHC 942 (TCC)

The Parties have agreed a Statement of Facts, which provides a chronological summary of the key facts / documents, with bundle references.

The Claimant is a property developer and the Defendant trades as a demolition contractor. The dispute arises out of demolition works at a site that the Claimant was developing in Norwich (and which is known as the old Mercy nightclub).

In early 2023, the Claimant approached the Defendant to perform demolition works at the site. The Defendant attended site on 28 April 2023 to discuss the works. Thereafter, on 2 and 3 May 2023, the Claimant emailed the Defendant with further details of the work scope and asking the Defendant for a price.

The Defendant provided a written quotation on 11 May 2023. This stated as follows:

“QUOTATION.

Demolition Works @Mercy Night Club.

Section 1

To supply all scaffolding to the ceiling & the 3 staircases to take out wooden ceiling and remove from site, to break out 3 concrete staircases and remove all rubble & concrete material in skips.

For The Fixed Price Of £78,500.00. + VAT.

Section 2

To supply scaffolding to the high rise wall, to take it down & remove the material from site in skips.

To take down steel staircase using cutting equipment & removed from site.

For The Fixed Price Of £23,250.00. + VAT.

Section 3

To take down the wall, roof, & concrete staircase from the back carpark using small excavator & small equipment to remove the rubble material & place into skips on the road with road permits supplied for the skips.

For The Fixed Price Of £61,250.00. + VAT.

Section 4

To supply equipment to breakout 3 station bases, 2 concrete floor bases, wall & foundation near drain pipe, walls above the basement & the steels out of the wall to remove all material from site into skips.

For The Fixed Price Of £93,000.00. + VAT.

All labour, equipment, machinery, skips, scaffolding & permits for the skips will be provided.

For The Fixed Price Of £256,000.00 + VAT.

Yours Sincerely”

The sum of £256,000 stated at the end of the quotation was the cumulative sum of the figures given for each of the four sections of work.

On 12 May 2023, the Defendant exchanged emails with Mr Ben James, CEO of the Claimant. Mr James was using an email address for a different business, Estateducation Ltd (as demonstrated by the email address and the footer to his email). Mr James asked whether the works could be done in 8 weeks. The Defendant replied that, “It will take 12 weeks at least”.

On 12 May 2023 and by WhatsApp, the Defendant reached out to Ben James, regarding the quotation. The Parties haggled on price, but no landing was reached.

On 13-16 May 2023 and by WhatsApp, general discussions continued on whether the Defendant would be awarded the job. The Defendant proposed a reduced price of £248,000. Mr James indicated that he was waiting on one other tender.

On 16 May 2023, Ben James (from his Estateducation email account) emailed the Defendant, discussing the sequence of works.

On 17 May 2023, the Defendant and Ben James had another written exchange by WhatsApp. In full, the conversation that day was as follows:

“[17/05/2023, 16:34:43] Steve Fincham: Hi Ben How did you get on mate is the job mine mate

[17/05/2023, 16:38:32] Ben James: Can you start on Monday?

[17/05/2023, 16:55:06] Steve Fincham: I can start with getting the scaffolding sorted and stuff on Monday mate but men will start the following Monday Tom needs to get the scaffolders there on Monday too mate to alter the scaffolding with ladder beams above the door way and make gates into the hoarding to get the equipment in He will know what we are talking about mate Appreciate this work I really do Ben

[17/05/2023, 17:43:15] Steve Fincham: Ben Are we saying it's my job mate so I can start getting organised mate

[17/05/2023, 20:06:42] Ben James: Yes

[17/05/2023, 20:06:51] Ben James: Monthly applications

[17/05/2023, 20:11:50] Steve Fincham: Are you saying every 28 or 30 days from invoice that's a yes not on draw downs then good d) call you at 8.30 mate Thanks mate appreciated Ben

[17/05/2023, 20:12:12] Ben James: Ok

[17/05/2023, 20:12:16] Ben James: Chat in the am

[17/05/2023, 20:17:49] Steve Fincham: Thanks Ben”

At this time, scaffolders were already on site, working for the Claimant. The Defendant maintains that, on or around 24 May 2023, the same scaffolders starting performing work for him (in the form of scaffold alterations to accommodate the demolition works).

On 26 May 2023, the Claimant (Mr Gokool, senior quantity surveyor) emailed the Defendant as follows, attaching a zip file of documents:

“Good Afternoon Steve,

Please see attached (Zip File) Contract for the Demolition Works at Mercy. If you have any issues or queries please address them to the following people:-

@Mike Ball will be dealing with your Monthly Payments,

@Tom Gillard is the contract Manager,

@[email protected] is the Project Manager.

Kind Regards” (Footnote: ¹)

The zip file attached to the email included: (i) a purchase order; (ii) a Short Form Subcontract and (iii) a marked-up ground floor plan of the works.

The purchase order was issued in the name of the Claimant and stated that the “Purchase Order Date” was “26 May 2023” and went on as follows:

The Short Form Subcontract (“the Subcontract” (Footnote: ²)) appended to the email on 26 May 2023, was dated 22 May 2023 and named the contracting parties as the Claimant and Fincham Demolition (being the Defendant’s trading name). The Subcontract stated that the contract sum was £248,000 plus VAT. Its terms provided for inter alia extensions of time, variations, retention, insurances, a defects rectification period and liquidated damages for delay. In the Claimant’s submission, of particular significance to the present case are the following clauses concerning payment:

“Payment and adjustment of Subcontract Sum

19.

The Subcontractor shall be entitled to receive monthly interim payments. The Subcontractor shall submit its first application for interim payment on the Interim Valuation Date (“IVD”) and shall submit each subsequent application for monthly interim payment on the same date of the month as the IVD or the nearest business date should the IVD in any given month fall on a weekend. Any application for interim payment received after the IVD will be processed by the Contractor in the next monthly payment cycle. The Subcontractor will only submit all its interim payment applications via email to [email protected].

[“Interim Valuation Date” was defined in Clause as “30 days after the Commencement Date`]

20.

The Subcontractor’s payment application must specify the amount which the Subcontractor considers is due at the Due Date for Payment, the basis on which that sum has been calculated and shall be accompanied by contemporaneous documentation which substantiates the amount which the Subcontractor considers is due.

21.

The Due Date for Payment is 7 (seven) days after the IVD.

[Clause 22 concerned the Claimant provided notice of the Notified Sum]

23.

The Final Date for Payment is 28 days after the Due Date for Payment.

[Clause 24 concerned the service of payless notices]

25.

Payment of the Notified Sum or such lesser sum due under any Pay Less Notice is conditional upon the Subcontractor raising a VAT invoice for the Notified Sum, or such lesser sum due under any Pay Less Notice, addressed to the Contractor at its registered office address not later than 7 (seven) days after the Final Date for Payment. Payment of any invoice will be made by the Contractor 28 days after the date of invoice. Any invoice raised by the Subcontractor which is received more than 7 (seven) days after the Final Date for payment will not be paid until 56 days after the date of invoice.”

It is common ground that the Defendant commenced demolition works on 30 May 2023 (save that the Defendant claims that a scaffolding subcontractor had carried out works on his behalf on 24 May 2023).

On 9 June 2023 and by email, the Defendant issued Invoice 1078 in the sum of £48,000 plus VAT. The email was sent to [email protected]. The contents of the invoice are discussed more fully below.

On 16 June 2023, the Claimant made a payment of £10,000 to the Defendant.

By an email sent on 23 June 2023 at 00:48, the Defendant issued Invoice 1079, in the sum of £100,000 plus VAT. This was 14 days after the first invoice.

As with the previous invoice, Invoice 1079 was emailed to [email protected]. The Claimant relies upon the fact that later that day, Mr James forwarded the Defendant’s email and invoice to his colleague at the Claimant, Mr Wymer, commenting that, “He’s now raised this as his second application which isn’t inline with his subcontract [sic]. He’s been there max 4 weeks and has raised 2 applications already”.

Later that same day, 23 June 2023, the Claimant (Mr Ball, quantity surveyor) emailed the Defendant. The subject of the email was “Application 1”. The email stated as follows:

“Dear Steve

Pleasure to introduce myself on the phone yesterday. Please see the below table which schedules out your payment terms that reflect your subcontract.

Please can you send your application 1 to [email protected] and copy in myself. The first application needs to be received by the 29th June, we will then agree the correct figure before payment on the 3rd August.

Any questions please do not hesitate to call.”

In a WhatsApp exchange on 24 June 2023, Mr James and the Defendant said inter alia as follows:

“[24/06/2023, 12:59:07] Ben James: Why did you submit application no. 2? You're not sticking to the subcontract that's in place

[24/06/2023, 13:06:18] Steve Fincham: Well I know I have to wait 30 days now mate or what ever it is and I've finished all inside sections and Wednesday we need to get in the back carpark mate So will you please pay me something mate

[24/06/2023, 13:09:14] Ben James: This is the payment application and payment due dates to work from

[24/06/2023, 14:03:52] Steve Fincham: Will you just answer your phone mate

[24/06/2023, 14:46:26] Steve Fincham: Can you put 5,000 or 10,000 across to help me mate

[24/06/2023, 16:38:08] Steve Fincham: Ben I keep saying I started on the Tuesday 16th

[24/06/2023, 18:04:11] Steve Fincham: Ben I do apologies mate now gone through all my dates and yes Ben I did start on the 30th so sorry But can you please pay me some money mate Steve

[25/06/2023, 11:19:09] Steve Fincham: Ben Can you pay me something today now mate please

[26/06/2023, 06:37:42] Ben James: Will call in an hour

[26/06/2023, 11:19:27] Steve Fincham: Ben Come on push the button mate can't organise anything till you push the button

[26/06/2023, 15:11:38] Ben James: Remember I'm doing you a favour”

On 26 June 2023, the Claimant made a further payment, in the sum of £10,000.

On 14 July 2023, the Defendant submitted Invoice 1081, in the sum of £38,750 plus VAT. The invoice was delivered by hand. This was the third invoice within the space of 35 days.

On 27 July 2023, the Defendant submitted a further invoice, Invoice 1083, in the sum of £9,107.50 plus VAT. This was delivered by hand.

Subsequently, the Claimant made three further payments, as follows:

Counsel for the Defendant relies upon evidence from the Defendant that on 1 September 2023, Mike Ball (referred to at paragraph 32 above) produced a valuation (and told the Defendant by email dated that day that he had left it on Mr Smith’s desk) which appeared to value the Defendant’s works in the full sum of £195,857.50 claimed.

On 8 December 2023, the Claimant issued a final account stating the total value of the Defendant’s works was £107,125 excluding VAT (£112,481.25 inclusive of VAT) before deduction of amounts already paid.

No further sum has been paid to the Defendant.

The Claimant says that the Parties fell into dispute regarding the amount of work that had been executed by the Defendant and the sums due. By letters on 30 November 2023 and 19 December 2024, the Claimant purported to terminated the Defendant’s contract.

The total sum invoiced by the Defendant was £195,857.50 plus VAT. The total sum paid by the Claimant was £80,000.