Management Solutions & Professional Consultants Ltd V Bennett (Electrical) Services Ltd

The effect of the oral instructions which varied or increased the scope of the sub-sub-contract works was not to remove the sub-sub-contract from the scope of section 107 of the Construction Act
 
MANAGEMENT SOLUTIONS & PROFESSIONAL CONSULTANTS LTD V BENNETT (ELECTRICAL) SERVICES LTD

Technology and Construction Court
His Honour Judge Anthony Thornton QC
10 July 2006
 
 
The relevant term in the sub-sub-contract provided that no variation to the work was to be carried out without the sub-contractor issuing a written instruction to carry out that variation. Oral instructions that varied or increased the scope of the sub-sub-contract works were issued. Disputes arose that the sub-contractor referred to adjudication. The adjudicator awarded the sub-contractor a specified sum. The sub-sub-contractor opposed the enforcement of the decision and contended that the effect of the oral instructions which varied or increased the scope of the sub-sub-contract works was to remove the sub-sub-contract from the scope of section 107 of the Construction Act by reason of the words "made in writing" or "evidenced in writing" in section 107 not extending to variations ordered orally under the contractual term.
 
Judge Thornton disagreed with this contention and enforced the decision. If the sub-contractor's contention were correct, whilst the sub-sub-contract was originally a contract in writing subject to the adjudication provisions of the Construction Act, once the first variation was instructed orally, the sub-sub-contract changed its nature to become one which was neither in writing nor subject to those adjudication provisions. This proposition did not make business sense or give full effect to the nature and purpose of the statutory adjudication scheme. Instead the true analysis of the position was that (1) the entirety of the sub-sub-contract was in writing and took effect once the sub-contractor's written acceptance was sent to the sub-sub-contractor (2) the sub-sub-contract allowed the scope of the work to be changed within the limits provided for by the written contractual provisions (3) the sub-sub-contract works could be varied within those limits (4) such variations did not vary the contract and instead they were merely instructions issued under the contract and with the authority of the contractual provisions that related to the carrying out of the contract (5) the disputed variations were therefore undertaken under the terms of the original sub-sub-contract and were within its scope and (6) even if the variations were oral and not evidenced in writing, the contractual requirement that the variations should be evidenced in writing was waived by both parties if it could be established that the instructions were issued by or on behalf of the sub-contractor.
Download