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

In July 2024, the Defendant started an adjudication seeking the outstanding sum of £125,650.38 as a notified sum.

Mr Siamak Soudagar was appointed as the “Adjudicator”.

In the Adjudication, the Claimant argued (among other things) that the Contract comprised the documents it sent on 26 May 2023 which were accepted by the Defendant commencing the works on 30 May 2023: see the Response at paragraph 4.18.

The Claimant’s alternative position was that if the Contract was agreed by WhatsApp messages on 17 May 2023 then the agreement was one application to be issued each month.

The Defendant’s position was that the Contract was agreed by an exchange of WhatsApp messages on 17 May 2023. and that the agreement was that it would be paid 28-30 days after issue of an invoice.

The Adjudicator issued his decision on 11 September 2024 (“the Decision”). The Adjudicator decided that the Defendant was entitled to the outstanding sum of £125,650.38 plus interest of £19,875.93 and late payment fixed compensation of £370 (totalling £145,896.31).

The Adjudicator dealt with the contract formation argument at paragraphs 28 to 98. He concluded:

“93.

It is my finding that the WhatsApp messages concluded the Contract. They cannot in my view be interpretated as pre-contract discussions.

94.

I am not convinced by Jaevee’s interpretation of the contract formation and conclude that Short Form of Subcontract is not applicable. The WhatsApp messages evidence the fact that the contract was formed on 17 May 2023 as a result of the agreement between Mr Fincham and Mr James.

95.

The WhatsApp messages confirm that an agreed sum for the Contract was £248,000. That was based on Fincham’s quotation dated 11 May 2024, in the sum of £256,000.00 + VAT which had then been lowered to £248,000.00 + VAT.

96.

The WhatsApp messages also confirm that the parties agreed that invoices to be paid within 28 or 30 days. Therefore, the submission of invoices was the agreed process with the final date for payment being 28 or 30 days.

97.

Having found that the Contract was formed by Fincham’s quotation and the subsequent agreement by WhatsApp messages between Mr James of Jaevee and Mr Fincham on 17 May 2023, the documents whether sent or not by Jaevee on 26 May 2023 by email, and whether received or not by Fincham are not relevant to the formation of the Contract. It is my finding that the contract between the parties had already been made on 17 May 2023.

98.

Furthermore, as to whether the date the works commenced was 24 May 2023 or 30 May 2023, it is not relevant as I have decided that the Contract was already formed on 17 May 2023.”

The Adjudicator also rejected the Claimant’s alternative argument at paragraphs 171 and 172:

“171.

I do not accept Jaevee’s statement that if the WhatsApp messages evidence the contract, the parties have agreed that payment applications are submitted monthly. That is not in my view what the parties agreed. The parties agreed that invoices would be submitted and that the final date for payment would be 28 or 30 days of the receipt of any invoice. The submission of invoices was the agreed process.

172.

Except for the fact that the final date for payment would be within 28 or 30 days of the receipt of any invoice, the Contract has no provisions in respect of Payment Notices and Pay Less Notices, therefore the relevant payment provisions of the Scheme apply to fill in any payment terms not forming part of the Contract.”

The Adjudicator also decided that the Claimant should pay his fees of £6,404 in full.