Bryen & Langley Limited -v- Martin Boston
Case reference:
[2005] EWCA Civ 973
Friday, 29 July 2005
Key terms: Contract Formation - Incorporation of JCT terms - incorporation of adjudication provisions - residential occupier - Unfair Terms in Consumer Contracts Regulations 1999.
This was an appeal from the enforcement of an adjudicator’s decision. At first instance, HHJ Seymour QC in the TCC held that the decision was unenforceable because the contract between the parties did not incorporate the JCT provisions, and so did not include adjudication. As the contract was with a residential occupier, the HGCRA exclusion applied, and so adjudication would not be implied into the contract.
The Court of Appeal considered that the issue of formation of contract and the identification of applicable terms turned on the interpretation of a letter of 12 June 2001 written by the quantity surveyor. That letter confirms that the client intended to proceed with the contract on the basis of the tender, for the price of £436,923 with a contract period of 16 weeks commencing on 18 June 2001. The contract anticipated that a JCT contract would be executed.
The leading judgement was provided by Mr Justice Rimer who held that the tender documents stated that the terms would be those of the Standard Form of Building Contract 1998 Edition Private With Quantities including Amendments 1-3. It may have been the case that this in itself would not have been enough, but for the fact that the tender documents then set out how the appendix to the contract was to be completed such that the terms of the contract were workable. The adjudication provision was specifically included. The Contractor provided his price on the basis of those documents, and therefore the letter of 12 June 2001 evidenced a contract which incorporated express adjudication provisions. Lord Justice Clarke and Lord Justice Pill agreed.
In respect of the Unfair Terms in Consumer Contracts Regulations 1999, the approach of Lovell Projects Ltd v Legg & Carver [2003] 1 BLR 487 and Westminster Building Company Ltd v Beckingham [2004] 1 BLR 265 was correct. In this case, the provisions were not imposed on the consumer, but rather it was the consumer, acting through his quantity surveying agent, that imposed the provisions on the supplier. There was no lack of openness nor fair dealing, and following the House of Lords Decision of Director General of Fair Trading v First National Bank Plc [2002] 1 AC 489 (see page 491 of that Judgment) the agreement was not unfair.
Both parties were, therefore, bound by the contractual adjudication provisions, and the Court of Appeal overturned the first instance decision and enforced the decision.
The Court of Appeal considered that the issue of formation of contract and the identification of applicable terms turned on the interpretation of a letter of 12 June 2001 written by the quantity surveyor. That letter confirms that the client intended to proceed with the contract on the basis of the tender, for the price of £436,923 with a contract period of 16 weeks commencing on 18 June 2001. The contract anticipated that a JCT contract would be executed.
The leading judgement was provided by Mr Justice Rimer who held that the tender documents stated that the terms would be those of the Standard Form of Building Contract 1998 Edition Private With Quantities including Amendments 1-3. It may have been the case that this in itself would not have been enough, but for the fact that the tender documents then set out how the appendix to the contract was to be completed such that the terms of the contract were workable. The adjudication provision was specifically included. The Contractor provided his price on the basis of those documents, and therefore the letter of 12 June 2001 evidenced a contract which incorporated express adjudication provisions. Lord Justice Clarke and Lord Justice Pill agreed.
In respect of the Unfair Terms in Consumer Contracts Regulations 1999, the approach of Lovell Projects Ltd v Legg & Carver [2003] 1 BLR 487 and Westminster Building Company Ltd v Beckingham [2004] 1 BLR 265 was correct. In this case, the provisions were not imposed on the consumer, but rather it was the consumer, acting through his quantity surveying agent, that imposed the provisions on the supplier. There was no lack of openness nor fair dealing, and following the House of Lords Decision of Director General of Fair Trading v First National Bank Plc [2002] 1 AC 489 (see page 491 of that Judgment) the agreement was not unfair.
Both parties were, therefore, bound by the contractual adjudication provisions, and the Court of Appeal overturned the first instance decision and enforced the decision.