Lead Technical Services Ltd v Cms Medical Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moses,Lord Justice Rix,Lord Justice Buxton |
| Judgment Date | 30 January 2007 |
| Neutral Citation | [2007] EWCA Civ 316 |
| Docket Number | A1/2006/0754 |
| Date | 2007 |
| Year | 2007 |
| Court | Court of Appeal (Civil Division) |
[2007] EWCA Civ 316
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
LEEDS DISTRICT REGISTRY
(HIS HONOUR JUDGE GRENFELL)
Lord Justice Buxton
Lord Justice Rix
Lord Justice Moses
A1/2006/0754
MR A EDWARD (instructed by Messrs Beaumont Legal) appeared on behalf of the Appellant.
MR J HOLROYD (instructed by Messrs Atkinson Firth) appeared on behalf of the Respondent.
This is an appeal by CMS Medical Limited (“CMS”) against a summary judgment pursuant to part 24 of the Civil Procedure Rules. The judgment of HHJ Grenfell of 17 March 2006 was given in favour of Lead Technical Services Limited, trading as Peter Wade Consultancy (“LTS”).
LTS had brought proceedings to enforce an adjudication in the sum of £83,541.90 under Part II of the Housing Grants Construction and Regeneration Act 1996 (“the 1996 Act”). The adjudication and the proceedings to enforce it arose out of a dispute over fees. LTS is a consulting engineer. It agreed to work for CMS Medical Supply Packagers on construction of a warehouse shed, integrated offices and what are described as a separate block of starter units. LTS carried out work for CMS between 2003 and 2004. The dispute about fees was referred to the adjudicator on 29 December 2005. The response of CMS came on 9 January 2006 and the adjudicator's decision, with admirable expedition, on 27 January 2006. Summary judgment in favour of enforcing that adjudication was on 17 March 2006. That judgment, as I have said, upheld the award and dismissed the counterclaim summarily. It is therefore somewhat dispiriting to record that the appeal against the summary judgment should now be taking place in January 2007, over two years since LTS last worked for CMS.
I say it is somewhat dispiriting since the adjudication was undertaken, as I have said, pursuant to Part II of the 1996 Act. The statutory scheme was designed to afford an expeditious system for providing an interim solution to disputes and thus meeting what this court, in Carillion Construction Limited v Devonport Royal Dockyard [2005] EWCA Civ 1358, described as legitimate cashflow requirements. The progress of this dispute has hardly fulfilled that purpose, but so to observe merely begs the very question we have to decide, for it assumes the application of that part of the Act. There is no dispute but that the agreement between CMS and LTS was a construction contract for the purposes of Part II; see Section 106(2). But part 2 only applies where the contract in writing, is as defined in section 107:
“107–(1) The provisions of this Part apply only where the construction contract is in writing, and any other agreement between the parties as to any matter is effective for the purposes of this Part only if in writing.
“The expressions 'agreement', 'agree' and 'agreed' shall be construed accordingly.
“(2) There is an agreement in writing—
(a) if the agreement is made in writing (whether or not it is signed by the parties),
(b) if the agreement is made by exchange of communications in writing, or
(c) if the agreement is evidenced in writing.
“(3) Where parties agree otherwise than in writing by reference to terms which are in writing, they make an agreement in writing.
“(4) An agreement is evidenced in writing if an agreement made otherwise than in writing is recorded by one of the parties, or by a third party, with the authority of the parties to the agreement.
“(5) An exchange of written submissions in adjudication proceedings, or in arbitral or legal proceedings in which the existence of an agreement otherwise than in writing is alleged by one party against another party and not denied by the other party in his response constitutes as between those parties in agreement in writing to the effect alleged.
“(6) References in this Part to anything being written or in writing include its being recorded by any means.”
CMS denies the jurisdiction of the adjudication on two distinct bases. Firstly it is contended that an earlier agreement between the parties in November or December 2002 was supplanted, to use CMS's words in its Defence and Counterclaim, by a signed Deed of Appointment dated 23 September 2003. It was an express term of that deed that the Technical and Construction Solicitors' Association Rules should apply; see Clause 18. Under those rules the ICE has no power to nominate the adjudicator. The adjudicator in the instant appeal was nominated by ICE and not, as the Deed provided, by the Technical and Construction Solicitors' Association. Secondly it is contended by CMS, as it has been contended throughout, that there was no agreement in writing within section 107. On the contrary there was an oral agreement that LTS's fees would be capped at £20,000. If that is correct the agreement would fall outwith section 107; there was no oral agreement by reference to terms which were in writing; see Section 107(3).
I turn then to the facts. There is no dispute but that LTS's quotation dated 20 November 2002 for preparing drawings for planning approval, making a submission for planning approval and carrying out necessary liaisons with the planning officer to the approval stage, was accepted by CMS's conduct and was subject to LTS's standard terms and conditions. Invoices were submitted by LTS in 2003 for that work. There was a dispute about a further quotation, dated 6 June 2003. CMS contended that that was a separate quotation, accepted separately and forming a distinct contract; see paragraph 62 of its response to the reference to the adjudicator. But that is only relevant in that it referred to the fact that CMS did not agree that LTS should act as a planning supervisor, a point regarded as important by the judge.
I turn then to the Deed of Appointment. There is a dispute between the parties as to whether the Deed of Appointment was, as it is put by LTS, completed. It was, be it noted, clearly signed by representatives of both parties on 23 September 2003. But the adjudicator held that that document was, as he put it, fatally flawed and never came into force. He said:
“The Deed of Appointment fails to reduce the referring parties' fees. It is uncompleted having not included Alan Mcdonald as Planning Supervisor [words omitted], has no scope of works included under Schedule 2 of the services. Moreover the lists at pages 18 to 29 of the response are not referenced within the document; are denied by the referring party, including a section on Planning Supervisor which was explicitly declined by the responding party in his letter of 20 June 2003, with the F10 officially appointing another person. The Respondent failed to provide any convincing argument or evidence as to how these new sheets were incorporated despite their assurances at the meeting. I consider this document to be fatally flawed and never to have come into force.”
The basis of that conclusion is that in the Deed at Schedule 2 there is a blank, and the words contained under that heading read:
“Insert appropriate list of services.”
There follows, then, a list of distinct duties starting with the duties of an architect and following with the duties of a structural engineer and thereafter of a planning supervisor and another under the rubric of “design”. They are not, as the adjudicator puts it, referenced. They include...
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