Cubitt Building & Interiors Ltd v Richardson Roofing (Industrial) Ltd
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE AKENHEAD |
| Judgment Date | 09 May 2008 |
| Neutral Citation | [2008] EWHC 1020 (TCC) |
| Docket Number | Case No: HT 08 05 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 09 May 2008 |
[2008] EWHC 1020 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Akenhead
Case No: HT 08 05
Kim Franklin (instructed by by Fenwick Elliott) appeared for the Claimant
Gaynor Chambers (instructed by CJ Hough & Co Ltd) appeared for the Defendant
Approved Judgment
Introduction
Cubitt Building and Interiors Limited (“Cubitt”) engaged Richardson Roofing (Industrial) Limited (“Richardson”) as roofing sub-contractors at a building site at Hampton Wick Riverside, Old Bridge Street, Hampton Wick, London. The case raises the not unfamiliar “battle of the forms” as well as an issue of more general interest relating to whether the Court or tribunal of final jurisdiction should stay the proceedings to enable adjudication to take place.
Cubitt seeks in these proceedings declaratory relief that its terms and conditions were incorporated into the sub-contract between the parties and injunctions that Richardson should be restrained from continuing with an arbitration started by it in November 2007 and that adjudication should proceed before any further proceedings.
Richardson seeks a declaration that the DOM/1 Sub-Contract Conditions were incorporated into the sub-contract and that Cubitt's application that the arbitration should be stayed pending adjudication should itself be stayed under Section 9 of the Arbitration Act 1996.
I will first address the history and exchange of correspondence between the parties and the “battle of the forms” issue before turning to the adjudication issue.
I found all the witnesses honest but, although none was deliberately unhelpful, some were more helpful than others. On balance, I found the Richardson witnesses to be more helpful in their recollections than the Cubitt witnesses and where their evidence materially clashed I prefer the evidence of the former.
History
Cubitt was the main contractor employed to carry out superstructure works to 40 residential and 15 affordable units, one porter's lodge, a shell only restaurant and wine bar and two shell only and one fitted office unit at Hampton Wick. Richardson was and is a specialist roofing contractor who had, however, never worked for Cubitt before.
By letter dated 13th January 2003, Cubitt invited Richardson to quote for the roofing works. That letter informed Richardson that the main contract was to be the Standard Form of Building Contract (1998 Edition) Private with Quantities and subject to further specific amendments. Bills of quantities (relating to the roofing) were enclosed with the letter. Various further relevant pieces of information were provided:
“2. The contract period will be 50 weeks commencing March 2003.
3. Firm contract.
4. Liquidated & ascertained damages will apply at the rate of £30000.00 per week or part thereof.
5. Payment terms will be 4 weeks from the end of the month.
6. Your tender will be deemed to include 2.5% Main Contractors Discount.
7. The defects liability period will be 12 months from the date of practical completion of the main contract.
8. Insurances: clause 21.1.1. £5,000,000.00
10. Retention 5%
13. The Supporting Documents for the purpose of your tender include extracts from the Preliminaries, relevant Preamble pages, Specification pages, and relevant pages from the Pricing Schedule upon which you should base your tender.”
There was no hint or suggestion in this invitation that any specific standard terms or Cubitt's own terms would apply.
Although, Richardson did not respond to this invitation, following a further invitation on 3 March 2003, Richardson quoted as they had been requested. There is no dispute that that quotation was not accepted.
By letter dated 15 April 2003, Cubitt again invited Richardson to quote for the roofing subcontract works for the particular project at Hampton Wick. The tender was invited to be returned by no later than 25 April 2003 and was to be based on much the same information as had been provided earlier with only minor exceptions such as reference to the contract period (being 52 weeks commencing June 2003) and liquidated damages applying at £20,000 per week otherwise the invitation was similar to the earlier one with no standard terms or Cubitt's terms and conditions being referred to.
By letter dated 2 May 2003, Richardson submitted their quotation. Materially, it stated as follows:
“In response to your enquiry we have pleasure in submitting our present prices as follows, subject to our standard terms and conditions overleaf and the particular conditions set out below.
Supply and Fix Rigidal standing seam roof system all as specification H31. …
We return herewith one copy of your Bill of Quantities duly priced.
The total amount of our priced items is £445,528.22 net plus VAT.
All contract and subcontract orders or agreements placed with us on or after the 1st May 1998 shall incorporate the provisions of the Housing Grants, Construction and Regeneration Act 1996.
Our tender will be held open for 3 months from the date of submission thereafter it will be subject to review and adjustment with respect to fluctuations in the price of labour, materials and plant. …
Day work rates Labour RICS + 250%
Materials and Plant Costs + 25% …”
Mr. Hanwell was the estimator for Richardson who signed that quotation and was personally involved in the pricing.
Over the next few days it is clear, and I find, that Richardson were asked to price various individual pages of the Bill of Quantities again with the result that the net price came down somewhat.
I will return later to the Richardson “Standard Terms and Conditions”. The quotation letter however made it clear that a number of facilities, such as scaffolding hoisting and cranage, were to be provided at no cost to Richardson in effect by Cubitt. These type of items are usually referred to (and indeed were later referred to) as “attendances”.
On 12 May 2003, Cubitt called Richardson in to a meeting at Cubitt's offices. That meeting was attended by Messrs. Payne, Stevenson and Mr. Malcher for Cubitt and Mr. Inman and Mr. Hanwell for Richardson. I only heard oral evidence from Mr. Payne and Mr. Hanwell. I did not find Mr. Payne's evidence, at least that given orally, of any real help at all. Unsurprisingly he had very little recollection of the meeting independent of the largely pro-forma meeting minutes which he prepared. Much of his evidence was that he could not recollect what was said or done. On the other hand, I found Mr. Hanwell's recollection and evidence of much more assistance.
At this meeting, as was Cubitt's normal practice in relation to subcontractors, a pro-forma form entitled “Pre-Subcontract Meeting Minutes” containing contract details which were to be confirmed or otherwise was handed over for discussion and agreement. The form runs to some eight pages.
The witnesses agreed that the meeting was not a very long meeting and certainly did not extend beyond one hour. However it is clear, and I find, that substantial agreement on every aspect of the subcontract was reached. So far as is most material to the issues in this case, the following was identified as agreed:
“1.2 The Subcontractor agrees to waive his standard terms and conditions in favour of the DOM/1. Agreed.
1.3 Valuations will be monthly with payment being due for payment within 28 days of Architects Certificate. Agreed.
1.4 The sub-contract order will be placed in the sum of £404,628.22 and is fully fixed until September 2004 and including 2.5% MCD. Agreed.
1.5 Retention of 5% to be held until practical completion of the project, when 2.5% will be released and the remaining 2.5% within 28 days of receipt of the making good defects certificate. Agreed. …
3.0 PROGRAMME AND METHOD STATEMENT.
3.1 Period required for production of working/design drawings A/B 4wks
3.2 Period to be allowed for approval of working/design drawings. 1/2 wks.
3.3 Period required for manufacture from approval of drawings. 3/4wks.
3.4 Total period required for design 8-10 wks from placement of order.
3.5 Total period required for works on site.
3.6 RR agreed to work to programme as detailed below.
| Area of Works | Earliest Start Date | Latest Start Date | Duration |
| Block A (Roof) | 07.07.03 | 28.07.03 | 9–10 wks |
| Block B (Roof) | 21.07.03 | 9–10 wks | |
| Block D (Roof) | 3 wks | ||
| Block C (Roof) | 6 wks | ||
| Cladding | 6 wks |
Total number of visits required Roof —six visits Cladding 3 visits…
ADMINISTRATION
Subcontractor's Insurance Cover:
Employers Liability
Public Liability
Day works [all rates described as “Given in Tender”]
Liquidated and Ascertained Damages —the L & A damages and the Sub-Contract are £20,000.00 per week or part thereof. Agreed. …
SITE DISCIPLINES.
Access to Site.
Old Bridge Street off of the High Street.
Deliveries to be booked into CBI booking system using forms, two hour time slot available …”
There was attached to the completed subcontract meeting minutes a Schedule of Attendances which the parties representatives put crosses against all those attendances which were by agreement to be provided by Cubitt and by Richardson.
Over the next few days, at the invitation of Cubitt, Richardson was asked to amend its pricing to reflect relatively minor changes to the Bills of Quantities. Richardson sent in a number of re-priced pages of the Bills of Quantities.
By letter dated 29/ 5/2003, Mr. Corbett of Cubitt (who gave evidence) sent to...
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