Rossco Civil Eng. Ltd v DWR Cymru Cyfyngedic

The contract between the employer and the contractor limited company (which assumed the benefits and burdens of the contract originally made between the employer and the contractor partnership) was in writing within the meaning of section 107 of the Construction Act 1996
 
ROSSCO CIVIL ENGINEERING LTD V DWR CYMRU CYFYNGEDIC

Technology and Construction Court
Mr Recorder Dermod O’Brien QC
15 July 2004
 
 
The parties to the contract as originally entered into were the employer and the contractor partnership. During the course of the carrying out of the works the partnership became a limited company and the parties continued with the contract on the basis that the contracting party was the limited company. Disputes arose in relation to the contractor's final account that were referred to adjudication by the employer. The adjudicator made an award in favour of the free issue materials in the contractor's favour on its counterclaim in this connection. The contractor limited company sought to enforce the award. The employer opposed enforcement on the grounds that the adjudicator had no authority generally because the contracting party was the partnership or to rule on the counterclaim. The judge held that the contracting party was the partnership on the basis that it was the parties' common understanding that the contracting parties were the employer and the limited company. An issue for determination was whether the contract was one in writing within the meaning of section 107 of the Construction Act 1996.
 
Mr Recorder Dermod O'Brien QC that it was such a contract. The parties' common understanding that the limited company had assumed the benefits and burdens of the contract originally made between the employer and the contractor partnership was something on which the parties agreed otherwise than in writing by reference to terms in writing (namely the terms of the NEC standard form of contract) for the purposes of section 107(3). This section provided that where the parties agreed otherwise than in writing by reference to terms in writing, they made an agreement in writing. This meant that the parties were deemed to have made an agreement in writing. In addition there was plenty of evidence in writing of the agreement in accordance with the parties' common understanding for the purposes of section 107(2)(c), which provided that there was an agreement in writing if it was evidenced in writing, for example two letters written with the employer's authority incorporating the full contractual terms.
 
Advice Note
This case is an example the tests to be applied under section 107 of the Construction Act being satisfied where it was clear that the parties contract on the basis of a standard form of contract.