Glendalough Associated SA v Harris Calnan Construction Ltd
There was a contract in writing under section 107(5) of the Construction Act where the contractor in its referral described the contract (simply) as an agreement for it to carry out the works and the employer in its response pleaded that the contract was in JCT form
21 October, 2013
GLENDALOUGH ASSOCIATED SA v HARRIS CALNAN CONSTRUCTION CO LTD
Technology and Construction Court
21st October 2013
The employer instructed the contractor to proceed with the works pending agreement of a formal contract based the "JCT 2005 IFC with Contractor's Design". The contractor contended that it had carried out and completed the works under the terms of the letter of intent. The employer asserted that it was entitled to deduct liquidated damages for the delay.
The contractor in its notice of adjudication described the contract (simply) as an agreement to carry out the works and claimed a declaration that the employer was not entitled to deduct liquidated damages. The employer pleaded in its response that the contract was in JCT form. At no stage before the response did the employer raise the point that the contractor was or might be relying on an agreement made otherwise than in writing. The employer brought court proceedings during adjudication seeking a declaration that the adjudicator had no jurisdiction because there was no agreement in writing within the meaning of section 107 of the Construction Act.
Section 107(5) of the Act provides that an exchange of written submissions in adjudication proceedings in which the existence of an agreement otherwise than in writing is alleged by one party and not denied by the other party in his response constitutes as between those parties an agreement in writing as alleged.
Edwards-Stuart J held that there was an agreement in writing within the meaning of section 107(5). The contractor alleged the existence of an agreement made otherwise than in writing when it described the contract in its referral (simply) as an agreement by which it was employed to carry out the works. The absence of any date of the alleged agreement or any reference to writing in the description of the contract when it is lawyers’ usual practice to refer to "an agreement in writing" in relation to a written contract suggested that the contractor was alleging an agreement otherwise than in writing. That agreement was not denied in the employer’s response in which it pleaded that the contract was in JCT form. The "effect alleged" is simply that the employer engaged the contractor to construct the development identified in the referral notice.