Kamm had sent All Metal plans, details and specifications for render and zinc work, asking All Metal to provide its best quotation. All Metal submitted a written quotation, attached to which was a detailed breakdown of the prices and rates, and a schedule of attendances which indicated who was to do what work on site. The total sum was £45,519.63. Some months later, before the quotation was accepted, Kamm sent new and revised drawings in a number of e-mails. All Metal provided a further quotation based on these revisions. Following this, Kamm sent a purchase order, which identified All Metal as the supplier and a description of the work. One of the standard form terms on the face of the order was that: "Any amendments/alterations to this purchase order must be agreed prior to delivery." The value of the order was given as £59,004.94. All Metal began to order materials and deliver them to site.
There were some delays for which All Metal was not necessarily responsible and an extension of time was agreed; however, by July 2009, the parties were in dispute about delivery and who was responsible for the delays. All Metal's first invoice for £13,000 was paid, but later ones were not. It was this non-payment which was referred to adjudication. Mr. Philip Fidler was appointed as adjudicator. In its defence, Kamm pleaded that the delays had justified it not paying the outstanding £30,000 to All Metal. Kamm then submitted a further defence, arguing that its contract with All Metal was not a contract in writing for the purposes of section 107(2) of the Housing Grants Construction and Regeneration Act 1996. Kamm argued that the purchase order had been varied orally, or contained express oral terms i.e. that time was of the essence for the completion of All Metal's works which should have been no later than the end of June 2009. Since all the terms of the contract had not been evidenced in writing, it was not a contracting writing for the purposes of the Act. Kamm had served no withholding notice.
The adjudicator concluded that all the express terms had either been writing or had been subsequently confirmed in writing so that the Act was satisfied. He ordered Kamm to pay All Metal all the sums due plus the costs and fees.
The only real issue before the court was whether an oral agreement reached prior to the purchase order being sent was one which impacted upon the adjudicator's jurisdiction. Whatever had been orally agreed in terms of time, the order that was actually sent out was one which called for delivery "ASAP", i.e. as soon as possible. The order was accepted by the All Metal's conduct in continuing with or commencing and starting work. So All Metal's obligation was to complete as soon as possible and that had been recorded in writing. It therefore followed, irrespective of what was argued in front of the adjudicator, that the adjudicator did have jurisdiction. The adjudicator's decision had been reached within his jurisdiction and his decision was enforceable.
Kamm's original defence had not reserved its position on jurisdiction. Although it had made a point about the contract being an oral one, it had not made the jurisdictional point about it. The further defence, made two days later, had made an effective reservation of jurisdiction. That being the case, it might well be that Kamm had effectively reserved its position, but it was not a judgment which the court had to make since it was not the main point being relied upon.
All Metal Roofing v Kamm Properties Ltd., [2010] EWHC 2670 (TCC)
Also reported in this week's subscription bulletin:
- Admissibility of Without Prejudice Negotiations;
- Entitlement to Security for the Works under the Party Wall Act
- The Use of the Anns Test to Establish a Duty of Care to Subcontractors
- The Incorporation of an Arbitration Clause into a Subcontract.
Construction Books, Construction Contracts Specialists Bliss Books Offer Pay As You Go Service
Book of the Week
Pre-Publication Offer- ICE Manual of Construction Law, Save £10.00, plus FREE UK Postage
Click Here to Read More
Got a story? Email news@theconstructionindex.co.uk
