Thomas-Fredric's (Construction) Ltd v Keith Wilson
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SIMON BROWN,LORD JUSTICE JUDGE,LORD JUSTICE JONATHAN PARKER |
| Judgment Date | 21 October 2003 |
| Neutral Citation | [2003] EWCA Civ 1494 |
| Docket Number | A1/2003/1444 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 October 2003 |
[2003] EWCA Civ 1494
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
LIVERPOOL DISTRICT REGISTRY
(HIS HONOUR JUDGE MACKAY
(sitting as a deputy High Court judge))
Royal Courts of Justice
Strand
London, WC2
Lord Justice Simon Brown
Lord Justice Judge
Lord Justice Jonathan Parker
A1/2003/1444
MR M O'REILLY (instructed by Messrs Tierney & Co, Sheffield S25 2LE) appeared on behalf of the Appellant
MR A SINGER (instructed by Messrs Knowles Solicitors, Liverpool L1 6EN) appeared on behalf of the Respondent
This is an appeal (by permission of Latham LJ) against the order of His Honour Judge MacKay in the Liverpool Technology and Construction Court on 9 May 2003 giving summary judgment under CPR 24.2 in favour of the respondents, the claimants in the action, for £11,813 plus interest of £177.20 (£11,990.20 in all) in respect of a claim brought to enforce an adjudicator's award dated 28 January 2003, made pursuant to Part II of the Housing Grants, Construction and Regeneration Act 1996 and the Scheme for Construction Contracts (England and Wales) Regulations 1998 ("the 1998 Regulations"). By section 107 of the Act, Part II applies only to construction contracts in writing. Section 107(2)(c) provides that a construction contract is in writing If it "is evidenced in writing".
The arbitrator's award here was in respect of a construction contract evidenced in writing by a letter dated 6 August 2002. It has been the appellant's case throughout that that contract was made, not with him personally, but with a company Gowersand Ltd ("Gowersand"). It is further his case that the adjudicator accordingly had no jurisdiction to embark on the adjudication, the referral notice having been directed towards the wrong party, and that he personally is not bound by the adjudicator's decision.
With that briefest of introductions let me turn next to the background to the dispute, although this too can be sketched in comparatively briefly. The appellant is the principal shareholder and company secretary of Gowersand, a company formed for various building projects, including the development of two dwellings and an access drive on land at the rear of the appellant's home at Pear Tree Farm, Laughton near Sheffield. By an agreement entered into in March 2001, the respondent builders undertook the development. Between then and the summer of 2002 they carried out the bulk of the works and received a number of substantial payments. As a result of certain disputes, however, that agreement was determined and a second agreement was made for the works to be completed on agreed terms.
The second agreement was made orally on 5 August 2002 and it was evidenced by a letter dated 6 August 2002 from the developer's surveyors to the respondents. Essentially what was agreed was that the contract works would be completed by 16 August 2002 for the further sum of £35,000, that sum to be paid by four equal weekly payments of £8,750, such payments being due:
"… on the condition that the work is carried out diligently and that the value of the works is considered correct to that amount."
The letter referred to the appellant, Mr Wilson, in its heading. Beneath the surveyor's signature at the foot, however, the appellant himself had signed the letter "on behalf of Gowersand Ltd".
The appellant accepts that following the first agreement the respondents had addressed all correspondence to him personally. But they took no exception to the letter of 6 August, and by 12 September 2002 they had made arrangements to transfer the NHBC certificate to Gowersand. Not until 6 November 2002 did they contend that this contract was, after all, with the appellant.
Most of the adjudicator's decision dated 28 January 2003 is concerned with the substantive disputes arising between the parties, disputes which are of no materiality on the present appeal. With regard to the identity of the developer, however, and more particularly the question of the adjudicator's jurisdiction to entertain this reference, the following passages of his decision are of importance:
"1.8 By a letter of 2nd January 2003 the Respondent alleges that he, Mr Keith Wilson, is not the developer in the contract for the construction of the two dwellings at Pear Tree farm. It is alleged that the correct name of the developer is Gowersand Limited, a company for which Mr Wilson is said to be the Company Secretary. As a consequence of this allegation the Respondent further alleges that there can be no referral to an adjudication on the ground that the wrong party has been named in the Notice of Adjudication and the Referral Notice. Following consideration of submissions made by the Claimant on 6th January 2003 the allegation was rejected and the parties informed that the adjudication would continue.
The Respondent provided further documentation in support of the allegation that Gowersand Limited is the developer in the contract by providing copies of letters from the solicitors, accountants and bankers of Gowersand on 6th and 8th January 2003. During a telephone conference the parties were invited to attempt to reach an agreement on this issue. The parties were unable to do so and therefore the Claimant was asked for further submissions on this issue. After consideration of the submissions by the Claimant on 10th January 2003 the parties were again informed that the inquiries as to the identity of the contracting parties were those named in the Notice of Adjudication and the Referral Notice. That being the case the parties were informed that the adjudication would continue.
The investigation of these allegations led the Respondent to request an extension of time for submission of the Response which the Claimant agreed to and revised directions were issued for the submission of the Response and the date for making the decision in this matter.
1.9 It has not been necessary to hold a meeting in connection with this adjudication. This decision has been made solely on the basis of the documentation received.
…
5.2 Throughout the contract the parties were in dispute as to progress, valuation of the works and payment. The parties agree that these disputes led to the formation of a further agreement thereby compromising their differences and disputes under the original agreement and bringing it to a conclusion. The new agreement was made by the parties at a meeting on or about 5th August 2002 and was confirmed by way of a letter from Oldale Owen Associates on 6th August 2002 (the Agreement). The parties agree that the Agreement is a construction contract within the meaning of the Act requiring the Claimant to complete the construction of the two dwellings and associated works for a lump sum payment of £35,000.00 payable over four weeks in instalments of £8,750.00.
…
The Respondent alleges that the Claimant is mistaken as to the identity of the Respondent. The Respondent maintains that the developer is Gowersand Limited whose Company Secretary is Mr Keith Wilson and that Gowersand Limited was the developer in both the original contract and the 6th August 2002 Agreement. It is clear that the developer in the original agreement is Mr Wilson. The quotations and subsequent correspondence from the Claimant are all addressed to Mr Wilson in person. Indeed there has never been shown to me any correspondence from either Mr Wilson or Gowersand Limited. The only reference to Gowersand Limited, on any documentation, appears to have been the 6th August 2002 Agreement which was signed by Mr Wilson on behalf of Gowersand Limited. However that letter merely confirms the agreement made at an earlier meeting when the parties to the contract were clearly Thomas Fredric Construction Limited and Mr Keith Wilson, the parties to the original agreement."
It is convenient at this stage to set out parts of the letter of 2 January 2003 referred to at the beginning of paragraph 1.8 of the decision, in which the developer's surveyors raised the jurisdictional objection to this adjudication:
"… the parties are wrongly named in the Referral Notice and we do not believe that you have the jurisdiction to decide the case.
…
The final [agreement] in the 'chain' of contracts was the Agreement of 6 August 2002 noted in the Referral at 2.44. This agreement, we submit, supersedes all other agreements. It is a construction contract within the meaning of Section 104 of the HGCRA (1996) and it is evidenced in writing by the document signed by the Parties, Thomas Fredric Construction Ltd [they did not in fact sign] and Gowersand Ltd.
…
The Adjudicator can have no jurisdiction to decide matters when the Referral does not include a qualifying contract and does not request a decision on the identity of the parties."
As indicated in the passages in his decision already quoted, the adjudicator concluded that he had jurisdiction in the matter and in the event directed the appellant to pay to the respondents by 7 February 2003 various sums, including his own fees, totalling in all £11,813.
Upon the appellant's refusal to pay the award, the respondents on 27 March 2003 issued particulars of claim to enforce the adjudicator's decision, and on the same day obtained from Judge MacKay permission to apply for summary judgment under CPR 24.2, notwithstanding that the appellant had filed neither an acknowledgement of service nor a defence.
The application came before the court on 9 May when, as stated, the respondents obtained summary judgment on their claim....
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