Allen Wilson Joinery Ltd v Privetgrange Construction Ltd
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE AKENHEAD,Mr Justice Akenhead |
| Judgment Date | 17 November 2008 |
| Neutral Citation | [2008] EWHC 2802 (TCC) |
| Date | 17 November 2008 |
| Docket Number | Case No: HT-08260 |
| Court | Queen's Bench Division (Technology and Construction Court) |
[2008] EWHC 2802 (TCC)
IN THE HIGH COURT OF JUSTICE
TECHNOLOGY AND CONSTRUCTION COURT
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand,
London, WC2A 2LL
Mr Justice Akenhead
Case No: HT-08260
Crispin Winser (instructed by Gullands) for the Claimant
Jennifer Jones (instructed by O'Callaghan & Co) for the Defendant
Hearing date: 7 November 2008
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE MR JUSTICE AKENHEAD
Introduction
1. The Claimant, Allen Wilson Joinery Ltd, seeks by way of an application for summary judgment to enforce an adjudicator's decision dated 8 August 2008 whereby the Defendant, Privetgrange Construction Ltd, was ordered to pay £12,449.70, plus VAT as due, together with interest of £564.23 up to 8 August 2008 and at the rate of £4.51 per day thereafter and £3,525 for the Adjudicator's fee.
2. Issues are raised as to whether the contract between the parties was in or evidenced in writing for the purposes of Section 107 of the Housing Grants, Construction and Regeneration Act 1996 (“ HGCRA”), as to whether any matters said to have been orally agreed were trivial or immaterial, as to whether if the evidence about any orally agreed matters is weak conditions should be imposed on any leave to defend granted and as to whether the adjudicator had jurisdiction to award interest.
The background
3. The Claimant was a sub-contractor employed by the Defendant to manufacture, deliver and install three full flights of stairs from a basement to the second floor of a development project known as Silverwood, Wentworth, Surrey. The Defendant was the main contractor. The Claimant was a company which manufactured and installed various different types of joinery work. It seems to be accepted that the two companies had worked together on a number of projects before the Silverwood one.
4. In May 2007, contact was made between the two companies with a view to the possibility of the Claimant providing a quote for various sets of stairs at the Silverwood development. On 24 May 2007, the Defendant sent to the Claimant plans and a section detail illustrating, broadly, where the stairs were to go in the development. These details did not identify the precise dimensions or indeed any great detail about what the stairs were to comprise.
5. By an e-mail dated 21 June 2007, the Claimant (its Mr Terry) provided what was called “a budget quotation for the staircases required” for Silverwood. This quotation describes in some detail what was covered by the quotation:
“All of the stairs are to be manufactured from yellow pine strings, 22mm MDF treads and 9mm ply risers with all of the necessary newels, storey newels, banisters, string capping and hand rails to be from the ‘Burbridge’ range, or equivalent, and are to be out of Hemlock. Stairwell linings are to be from primed MDF, thickness T.B.C. All components are to be spray primed in our workshop for the final painting by others all landing joists and chipboard sheet flooring are to be fitted by A.W.J. with plasterboard and making good/decoration to be by others.”
There then followed a description of how many steps there were to be in each set of stairs between floors followed by these words:
“All of the above for the sum of £19,673.00 plus VAT.”
At the end of the quotation the following appears:
“The final costs will be finalised when full details have been agreed and site surveys have been carried out.”
There seems to be little or no dispute between the parties that the contract between them was based on and incorporated this “budget quotation”. There is an issue between the parties as to when that contract came into being.
6. At some stage over the next few months, the Claimant appears to have done a site survey. On 21 December 2007, Mr Terry of the Claimant sent to the Defendant (its Mr Seagroatt) what was said to be “dimensioned drawings” for the stairs. These are in the form of a dimensioned plan for each set of stairs with dimensions given for the rises and goings together with the pitch. Isometric drawings were also provided which would give a 3D impression of what the stairs would look like. On 4 January 2008, Mr Terry sent several more drawings relating to the stairs with some more detail of what was to be provided.
7. Thereafter in January 2008, the Claimant commenced work for installing the stairs. However, by February 2008, the Architect was reported as stating that the staircase being installed was unacceptable in his view. It appears that the stairs were rejected. When the Claimant presented its invoice for the work done, it was not paid.
The Adjudication
8. A dispute had arisen between the parties as to whether the Claimant was entitled to any payment from the Defendant. The Defendant sought to argue that no sum was due, the stairs had been designed or manufactured inappropriately and that there had been substantial delays in any event in proceeding with the stair work.
9. On 11 July 2008, the Claimant served a Notice of Adjudication on the Defendant, applying on the same day to the RICS to nominate an adjudicator to decide the dispute. The RICS nominated Mr Harvey Mason as the Adjudicator on 15 July 2008.
10. The Defendant's solicitors challenged Mr Mason's jurisdiction on the grounds that, where there was a contract between the parties, it was not in writing for the purposes of section 107 of the HGCRA. They also made clear that they challenged his jurisdiction to award interest.
11. The Referral Notice is dated 18 July 2008. In it the Claimant claimed the amount due under the contract as at that stage £17,416.11 and the payment of interest.
12. By its Response dated 30 June 2008, the Defendant maintained its jurisdictional objection but responded to the merits of the claims made against it. Amongst other things, the Defendant submitted in this Response the following:
“(a) That the Claimant was engaged to design as well as to manufacture, deliver and install the staircase.
(b) That the Claimant would complete the work within 8–12 weeks.
(c) That this time obligation was varied in or around August 2007 to the effect that the work would be completed by Christmas 2007.
(d) That there were various implied terms that the Claimant would carry out its work with reasonable care and skill and that the Claimant would perform its obligations within a reasonable time.”
The Defendant raised an objection to the award of interest.
13. The Claimant produced its Reply to that Response on 2 August 2008. It denied that there was any express term for the design of the staircase or that terms were agreed about the completion times.
14. Witness statements from Mr Seagroatt and Mr Terry were also exchanged in the adjudication. I will return to these later.
15. On 8 August 2008, as indicated above, the Adjudicator issued his Decision allowing to the Claimant somewhat less than they had been claiming but allowing to the Claimant some interest.
These proceedings
16. The Defendant did not accept or honour the Adjudicator's Decision. In consequence on 16 September 2008, the Claimant issued proceedings seeking to enforce the Decision. The application for summary judgment was supported by a statement from the Claimant's solicitors. The Defendant's case in these proceedings was supported by two witness statements, one from Mr Seagroatt and the other from its solicitor Mr O'Callaghan. There was exhibited to the latter's statement most of the relevant contemporaneous documents together with Mr Seagroatt's and Mr Terry's statements in the Adjudication.
The evidence and the arguments on the Contract
17. The Defendant seeks to argue that there was not a written contract for the purposes of Section 107 of the HGCRA because various matters were agreed, only, orally. These matters are as follows:
(a) An oral agreement, probably in May 2007, between Mr Seagroatt and Mr Terry that the Claimant would design the staircase as well as manufacture, deliver and install it.
(b) They agreed completion within eight to 12 weeks, this agreement being varied in about August 2007 to the effect that the works would in any event be completed by Christmas 2007.
(c) That there was an implied term, to be implied by reason of the previous course of dealing between the parties that sub-contracting was not permissible.
(d) Because the accepted quotation expressly stated that costs were to be finalised, it is said that there was no agreement in writing.
18. As to the alleged design agreement, Mr Seagroatt's evidence was and is as follows:
(a) In his witness statement in the Adjudication, he says, materially,
“7. … it was understood between us that Allen Wilson would carry out the actual design of the staircase …
8. I understand that Allen Wilson deny that they would design the staircase. I do not understand why they say this. Privetgrange did not carry out any design for the staircase at all. We told Allen Wilson where the staircase needed to go and how much space was available for it, but other than that I agreed with Chris Terry that he would design, manufacture and install the staircase. We never wrote down the agreement about design, but it was understood between us.”
Reliance is also placed on the fact that design drawings were produced, so it is said, in December 2007 and January 2008 by the Claimant.
(b) In his statement for the court proceedings, Mr Seagroatt says this:
“7. As I explained in my first statement, I agreed with Chris Terry that Allen Wilson would carry out the design of the staircase. That is still my...
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