Bryen & Langley Ltd v Boston (Part II)

The adjudication provisions in JCT 98 were not unfair terms for the purposes of the Unfair Terms in Consumer Contracts Regulations 1999 and were therefore binding
 
BRYEN & LANGLEY LTD v BOSTON

Court of Appeal
Pill and Clarke LJJ and Rimer J
29 July 2005
 
 
A letter of intent was sent on behalf of the flat owners and was accepted by the contractor. The letter envisaged that a contract would be entered into that would incorporate JCT 98 and the ensuing contract did incorporate JCT 98, including its adjudication provisions. A dispute arose that was referred to adjudication by the contractor. The adjudicator made an award in favour of the contractor in his second decision. The contractor applied to the court to enforce the award. The flat owners resisted enforcement on the ground that the adjudication provisions in JCT 98 were unfair terms for the purposes of the Unfair Terms in Consumer Contracts Regulations 1999.
 
The Court of Appeal rejected this ground on the basis that there was no lack of openness, fair dealing or good faith in the manner in which the contract came to be made. Judge Moseley in Lovell Projects v Legg and Judge Thornton in Westminster Building Company Limited v Beckingham both found, in cases where the terms had been imposed on the contractors (or suppliers) by the employers' (or consumers') architect, that the terms caused no significant imbalance to the employers (the consumers) and that there was no question of any lack of good faith or fair dealing by the contractors (the suppliers) in the circumstances in which the contracts came to be made. The flat owners faced exactly the same difficulties as did the consumers in the Lovell and Beckingham cases insofar as it was the flat owners (the consumers) who, acting through their surveyor, imposed JCT 98 on the contractor (the supplier) by the surveyor specifying the use of that standard form of contract in his original invitation to tender. The suggestion that there was any lack of good faith or fair dealing by the contractor was wrong insofar as: (1) If the contractor was to tender at all, it was being asked by the flat owners to tender on the very terms about which the flat owners complained to the court (2) It was not for the contractor to take the matter up with the flat owners and to ensure that they knew what they were doing and (3) The flat owners knew that they had the benefit of the services of a professional to advise them of the effects of the terms on which they were inviting tenders.
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