Treasure & Son Ltd V Dawes

The statement of the contractor's director in the adjudication that there was an oral variation to the contract was not denied by the employer in the adjudication and therefore constituted a written agreement under section 107(5) of the Construction Act
 
TREASURE & SON LTD V DAWES

Technology and Construction Court
Akenhead J
25 October 2007
 
One of the jurisdictional challenges made by the employer in the court enforcement proceedings brought by the contractor in respect of the award made by the adjudicator to the contractor was that the dispute referred was based on an oral variation to the contract with the result the adjudicator had no jurisdiction in the light of the requirement of section 107 of the Construction Act that (all) the contract's terms must be in writing. The contractor relied on section 107(5) which provides that an exchange of written submissions in adjudication, arbitration or court proceedings in which the existence of the agreement otherwise than in writing was alleged by one party against another party and was not denied by the other party in his response constitutes (as between those parties) an agreement in writing to the effect alleged. The contractor contended that the statement of the contractor's director in the adjudication brought by the contractor against the employer that there was an oral variation to the contract was not denied by the employer in the adjudication and therefore constituted a written agreement under section 107(5). The employer opposed that contention by relying on the statement of Judge Bowsher in Grovedeck v Capital Demolition (2000) that Parliament must have intended to add a reference to preceding adjudication proceedings by adding the words "in adjudication proceedings" to section 107(5) on the basis that there was no intention on Parliament's part to provide that submissions by a party in unauthorised adjudication proceedings should confer on the adjudicator in those proceedings a jurisdiction which he did not have when appointed.
 
Akenhead J preferred the contractor's contention and held that the contractor's director's statement did constitute a written agreement under section 107(5) on the basis that that section applied notwithstanding that the lack of denial was in the adjudication proceedings in question. Judge Bowsher's interpretation should not be accepted since (i) the approach of considering what was said in debate in Parliament should only be adopted if there was some ambiguity in the words of the statute (ii) there was no ambiguity in the words "in adjudication proceedings" and (iii) those words could therefore apply to any adjudication proceedings, whether before, concurrent with or the same as the adjudication proceedings which were under review by the court.
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