Rob Purton T/A Richwood Interiors v Kilker Projects Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stuart-Smith |
| Judgment Date | 16 September 2015 |
| Neutral Citation | [2015] EWHC 2624 (TCC) |
| Docket Number | Case No: HT-2015000239 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 16 September 2015 |
[2015] EWHC 2624 (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 Stuart-Smith
Case No: HT-2015000239
Mr Robert Sliwinski (instructed by Thomas Bingham Chambers (Direct Access)) for the Claimant
Mr Jonathan Selby (instructed by Fenwick Elliott LLP) for the Defendant
Hearing dates: 29 July 2015
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.
Introduction
This is the Claimant's application to enforce the adjudication decision of Mr Christopher Hough made on 12 May 2015 by which he ordered the Defendant ["Kilker"] to pay the Claimant ["Mr Purton"] £147,223.00 within 7 days and ordered Kilker to pay his fees and expenses of £4,184.00.
Mr Purton trades in his personal capacity, either sometimes or always in the trading name of Richwood Interiors. He is also associated with at least one limited company having a name that is similar to Richwood Interiors. The dispute arises out of works carried out by Mr Purton for Kilker at the Dorchester Hotel. Mr Purton asks for summary judgment. Kilker resists that on the basis that there was no concluded contract between the parties and therefore the Adjudicator had no jurisdiction to give his decision. That was a point that Kilker took before the Adjudicator. He rejected it by a non-binding decision which is included in his overall decision. Kilker reserved its position but made submissions on the facts underlying Mr Purton's claim without prejudice to that reservation.
By way of introduction, it is only necessary to add that this is the second adjudication arising out of these works. The first was started in the name of Richwood London Limited, because Mr Purton said that he had transferred his contract to that limited company. In the first adjudication, Kilker took the point that any contract had been with Mr Purton and not with Richwood London Limited. The first adjudicator accepted that submission and resigned. Mr Purton then issued the second adjudication in his own name.
The General Principles to be Applied
The test to be applied when considering an application for summary judgment is vey well known and is set out at CPR 24.2. The Court must be satisfied that the Defendant has no real prospect of successfully defending the claim and that there is no other compelling reason why the case should be disposed of at a trial.
The relevant principles on the formation of contracts are equally well known. One convenient summary (among many) appears at [49] of the speech of Lord Clarke in RTS Flexible Systems Ltd v Molkerei Aolis Muller GmbH & Co KG [2010] UKSC 14, which I bear in mind but do not set out again here. In a case where, as here, there is no doubt that substantial works have been carried out at the request of a party, it is important to bear in mind the guidance provided by the Court of Appeal in Percy Trentham Ltd v Archital Luxfer Ltd (1992) 63 BLR 44. At page 52, Steyn LJ said:
"The third matter is the impact of the fact that the transaction is executed rather than executory. It is a consideration of first importance on a number of levels. See British Bank for Foreign Trade ltd v Novinex [1949] 1 KB 268, at page 630. The fact that the transaction was performed on both sides will often make it unrealistic to argue that there was no intention to enter legal relations. It will often make it difficult to submit that the contract is void for vagueness or uncertainty. Specifically, the fact that the transaction is executed makes it easier to imply a term resolving any uncertainty, or, alternatively, it may make it possible to treat a matter not finalised in negotiations inessential…… Fourthly, if a contract only comes into existence during and as a result of performance of the transaction it will frequently be possible to hold that the contract impliedly and retrospectively covers pre-contractual performance. See Trollope & Colls Ltd v Atomic Power Construction Ltd [1963] 1 WLR 333."
Lord Clarke noted in RTS at [54], "Steyn LJ was not saying that it follows from the fact that the work was performed that the parties must have entered into a contract. On the other hand, it is plainly a very relevant factor pointing in that direction. Whether the court will hold that a binding contract was made depends upon all the circumstances of the case, of which that is but one."
This approach may be particularly important where either (a) there is no doubt that works were agreed to be carried out and were in fact carried out but the price for those works was either not agreed or subject to future variation; or (b) where an original scope of works was agreed (with or without a price being agreed) in the knowledge that further works may be added later (either by a formal process of variation orders or less formally). In either case, where the works have in fact been carried out, the Court may readily find that there was an intention to create legal relations; and if it is concluded that there was insufficient certainty about the agreement of a price or pricing mechanism, the Court will readily infer that the person carrying out the works is entitled to be paid on a quantum meruit basis rather than reaching the more drastic position of denying the existence of a contract altogether. These principles are just as applicable in the context of a claim based upon an adjudicator's award as in other circumstances.
In this case Mr Purton says that he entered into a contract with Kilker on or about week commencing 9 June 2014 for the joinery package at the Dorchester Grill for a price of £350,000 and that the contract was subsequently varied in value, quantity and quality. He says he entered into the contract on or about week commencing 9 June 2014 in the course of a conversation with Mr Brendan Kilker of Kilker. Kilker denies the existence of any such contract.
On the papers it appeared that the only issue to be considered was whether Kilker has any reasonable prospect of establishing the absence of a contract. In submissions, Mr Selby for Kilker wisely shifted his ground to include a second line of defence, namely that even if there was a contract, it was not the contract that was referred to adjudication or is the subject of these proceedings and that therefore summary judgment should not be entered. It is not suggested that there is any other compelling reason why the case should go to trial.
The Factual Background
The referral to adjudication asserted that an oral contract had come into existence during the week of 9 June 2014, the essential terms of which were that there was a specified list of itemised work and an agreed contract price of £350,000. It alleged that the original contract was changed in various respects both in value and in quantity and quality through various variation instructions. In his witness statement in support, Mr Purton said that he had a meeting with Mr Kilker "in the week commencing 9 th June 2014" at which it was agreed that a list of items would be his scope of works for the contract and the price for those works would be £350,000.
Mr Kilker denies that any such conversation took place. In his witness statement for the adjudication, he said "At no stage did Mr Purton ever say or suggest to me that the contract would be entered into with him trading as Richwood Interiors". His evidence was supported by his project Quantity Surveyor, Mr Jennings, who said that his understanding at all times was that a figure in the range of £550,000–600,000 had been spoken about but not finally agreed.
When these proceedings were issued on the back of the adjudicator's decision, Mr Purton pleaded that he entered into the contract with Kilker "on or about" 9 June 2014, that a dispute had arisen under the contract which had been referred to adjudication and that he claimed an order enforcing the adjudicator's decision. His initial witness statement in support of his application for summary judgment referred to having entered into a contract "on or about" 9 June 2014. Mr Kilker took issue with Mr Purton, stating that "Kilker never reached an agreement with Mr Purton about his work on the Dorchester Grill, whether in the week of 9 June 2014 or at all." He denied having met Mr Purton during the week of 9 June 2014 to discuss scope or prices, though he had received an email from Mr Purton on 12 June 2014 suggesting a meeting at the Dorchester that day, which he thinks did not happen. He said that the first discussion of the figure of £350,000 was on or after 21 July 2014. In a reply witness statement, Mr Purton reiterated that a meeting had taken place during the week commencing 9 June 2014 when they had reached firm agreement on what was called the Joinery Package.
Less controversially, Mr Purton says that he carried out the works on site between 22 September and the last week of October 2014, though it is apparent from the documentation that substantial preparatory steps had been taken before then, for which Mr Purton had requested and received payments from Kilker. This is now common ground, at least for present purposes.
Various documents and events have been referred to in support of either side's position. Some predate the alleged contract, others come later:
i) Mr Kilker says that he and Mr Purton met in April 2014. He says that in the course of the meeting he and Mr Purton had "looked at all the joinery elements and associated finishing details that Mr Purton would be required to carry out" and at the end of the meeting...
To continue reading
Request your trial
-
Dacy Building Services Ltd v IDM Properties LLP
...has been performed. A recent example of such a case in the context of adjudication enforcement is to be found in Purton (t/a Richwood Interiors) v Kilker Projects Limited [2015] EWHC 2624, in which Stuart-Smith J had little difficulty in concluding that there was a concluded contract betwee......
-
Rmp Construction Services Ltd v Chalcroft Ltd
...had been no pay less notice. Should the adjudicator's decision be enforced? 41 Both parties referred, without apparent disapproval, to Purton v Kilker [2015] EWHC 2624 (TCC). In Purton the Defendant resisted enforcement of the Adjudicator's decision on the basis that the contract giving the......
-
Mpb v Lgk
...EWHC 3434 (TCC), Twintec Ltd v Volkerfitzpatrick Ltd [2014] EWHC 10 (TCC), Rob Purton t/a Richwood Interiors v Kilker Projects Ltd [2015] EWHC 2624 (TCC), RMP Construction Services Ltd v Chalcroft Ltd [2015] EWHC 3737 (TCC), and Skymist Holdings Ltd v Grandlane Developments Ltd [2018] EH......
-
Dacy Building Services Ltd v IDM Properties LLP
...there was no concluded contract if the subject matter of the putative contract has been performed. For example, in Purton (t/a Richwood Interiors) v Kilker Projects Limited [2015] EWHC 2624, Stuart-Smith J had little difficulty in concluding that there was a concluded contract between the p......
-
Projects And Construction Law Update - October 13, 2015
...meet those demands efficiently To read more, please click here. Case law update Purton (t/a Richwood Interiors) v Kilker Projects Ltd [2015] EWHC 2624 (TCC) Here the TCC had to decide whether to enforce an adjudicator's decision arising out of an oral contract. The case involved a subcontra......
-
Table of cases
...& Co (Hillingdon) Ltd v Jackson [1976] 3 WLR 700 II.6.57, III.19.12, III.24.32, III.25.118, III.25.217 Purton v Kilker Projects Ltd [2015] EWHC 2624 (TCC) I.2.45, III.24.105 Puttick v Tenon Limited [2008] HCA 54 I.3.88 P Ward Civil Engineering Pty Ltd v Bovis Lend Lease Pty Ltd [2002] NSWSC......
-
Statutory adjudication
...RJT Consulting Engineers Ltd v DM Engineering (NI) Ltd [2002] 1 WLR 2344 at 2351 [11], per Ward LJ. 541 Purton v Kilker Projects Ltd [2015] EWHC 2624 (TCC) at [22]–[32], per Stuart-Smith J (noted by Lee, (2016) 32 Const LJ 189). See also RMP Construction Services Ltd v Chalcroft Ltd [2015] ......
-
Contract formation
...2125 (TCC) at [81]–[82], per Stuart-Smith J (appeal allowed, on unrelated grounds: [2015] EWCA Civ 715); Purton v Kilker Projects Ltd [2015] EWHC 2624 (TCC) at [5]–[7], per Stuart-Smith J. 145 See, for example, Mrocki v Mountview Prestige Homes Pty Ltd [2010] VSC 624 at [78]–[81], per Dixon......