Millers Specialist Joinery Company Ltd -v- Nobles Construction Ltd

The sub-contract was an agreement in writing within the meaning of section 107(1) of the Construction Act 1996 on the basis that it was evidenced in writing within the meaning of section 107(2)(c
 
One of the issues for determination was whether the sub-contract was an agreement within the meaning of section 107 of the Construction Act 1996. The sub-contractor contended that the sub-contract was evidenced in writing within the meaning of section 107(2)(c) by the contractor's letter confirming what had been agreed orally as to the sub-contract's terms at a previous meeting. The contractor contended that the author of the contractor's letter, who was the contractor's representative at the meeting, was never authorised by the sub-contractor to record in writing what had been agreed at the meeting with the result that it could not properly be said that the letter evidenced the agreement in writing within the meaning of section 107(4), which provided that an agreement was evidenced in writing if the agreement was recorded in writing with the parties? authority. Judge Gilliland held that the sub-contract was an agreement in writing within the meaning of section 107(1) on the basis that it was evidenced in writing within the meaning of section 107(2)(c) by the contractor's letter. The judge agreed that the contractor was correct in submitting that the author of the contractor's letter had never authorised by the sub-contractor to record in writing what had been agreed at the meeting. However, this did not mean that the agreement was not one in writing under section 107(2)(c). Section 107(4) did not provide an exhaustive definition of what "evidenced in writing" meant. It was common ground that the contractor's letter was an accurate record of what had been agreed. Authority was only relevant when the document was to be treated as binding or effective without any further step or assertion being necessary. The words "evidenced in writing" were used in section 107(2) in their ordinary sense of referring to a written document setting out or referring to the relevant terms of the agreement. Lastly section 107(4) widened the ambit of what was to be regarded as an agreement in writing under the Act. Advice Note An agreement does not have to be recorded in writing with the parties? authority so as to constitute an agreement in writing within the meaning of the Construction Act if there is sufficient evidence that it was otherwise evidenced in writing.
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