Bryen & Langley Ltd -v- Martin Rodney Boston
Case reference:
[2004] EWHC 2450 (TCC)
Thursday, 4 November 2004
Key terms: Enforcement - conversion of two flats into one - contract formation - incorporation of contract terms - JCT 98 Private with Quantities - Letter of Intent - Unfair Terms in Consumer Contracts Regulations 1999
The claimant was a building contractor, Bryen & Langley Limited. They had entered into a contract with a private client for the conversion of two flats into one residential flat. A specification had been prepared and the preliminaries stated that the contract would be in the form of JCT Private with Quantities 1998 Edition. A letter dated 12th June 2001 confirmed the contract price, contract period and said that the contract “will be” executed in the form of the JCT Contract, and that “contract documents will be drawn up shortly”. The work commenced on site before 28th August 2001 and a JCT Form of Contract was never signed. A dispute was referred to adjudication on 20th May 2002 in respect of interim certificate no. 11.
The defendant refused to pay on the basis that: (1) the contract did not incorporate the JCT terms, (2) if it did then the adjudication or set-off provisions were unfair pursuant to regulation 7(1) of the Unfair Terms in Consumer Contracts Regulations 1999, and (3) the defendant did not consent to the adjudicator deciding his own jurisdiction.
HHJ Seymour QC held that while a contract may have formed as a result of the letter of 12th June 2001 and the commencement by the contractor on site it did not incorporate the JCT Form of Contract. This was because the letter of 12th June 2001 made it clear that a contract was to be executed, and that it was to be drawn up at some later date. Further, the JCT Form was unworkable because the blanks needed to be completed in the appendices, and in particular identification of the applicable payment option. As the Agreement did not include the JCT provisions there was no express agreement between the parties to adjudicate. The Housing Grants, Construction & Regeneration Act 1996 was not applicable because the contract was with a residential occupier and so adjudication would not be implied into the contract.
This was sufficient to refusing enforcement, but His Honour nonetheless considered the application of the Unfair Terms in Consumer Contracts Regulations 1999 and came to the conclusion that provided the “consumer” was aware of the adjudication provisions then those provisions would not affect the consumer’s rights. This was on the basis that any professional advising the consumer had sufficiently informed the consumer about the nature of the adjudication provision. The adjudicator did not have the ability to decide his own jurisdiction and so the decision was not enforced.
The defendant refused to pay on the basis that: (1) the contract did not incorporate the JCT terms, (2) if it did then the adjudication or set-off provisions were unfair pursuant to regulation 7(1) of the Unfair Terms in Consumer Contracts Regulations 1999, and (3) the defendant did not consent to the adjudicator deciding his own jurisdiction.
HHJ Seymour QC held that while a contract may have formed as a result of the letter of 12th June 2001 and the commencement by the contractor on site it did not incorporate the JCT Form of Contract. This was because the letter of 12th June 2001 made it clear that a contract was to be executed, and that it was to be drawn up at some later date. Further, the JCT Form was unworkable because the blanks needed to be completed in the appendices, and in particular identification of the applicable payment option. As the Agreement did not include the JCT provisions there was no express agreement between the parties to adjudicate. The Housing Grants, Construction & Regeneration Act 1996 was not applicable because the contract was with a residential occupier and so adjudication would not be implied into the contract.
This was sufficient to refusing enforcement, but His Honour nonetheless considered the application of the Unfair Terms in Consumer Contracts Regulations 1999 and came to the conclusion that provided the “consumer” was aware of the adjudication provisions then those provisions would not affect the consumer’s rights. This was on the basis that any professional advising the consumer had sufficiently informed the consumer about the nature of the adjudication provision. The adjudicator did not have the ability to decide his own jurisdiction and so the decision was not enforced.