Ken Biggs Contractors Ltd v Norman
Wednesday, 4 August 2004
Key terms: Enforcement -formation of contract - construction contract - residential occupier -incorporation of terms
The claimant contractor sought to enforce the decision of an adjudicator made in its favour. The defendant refused to pay on the basis that the adjudicator did not have any jurisdiction to hear the dispute, because there was no construction contract incorporating adjudication provisions. The dispute related to work carried out to the defendant’s home.
The claimant relied upon a letter written to the defendant stating that the JCT Standard Form of Building Contract with Contractor’s Design “1988 Edition” was to apply. In the letter the dispute resolution provisions were mentioned specifically. The defendant argued that there was no such 1988 Edition, only the 1981 and 1998 Editions.
HHJ Havery held that the exchange of letters most likely constituted a contract between the parties. However, it was impossible to say whether adjudication provisions, if any, have been incorporated. The reference to the “1988 Edition” was most likely a typographical error, but it could easily have been a reference to the 1981 Edition of the contract or the 1998 Edition. In the absence of a date, the Judge may have inferred that the parties intended to use the latest edition. However, as it was impossible to say which form of contract was to apply the decision was made without jurisdiction and the Judge refused to enforce it.
The claimant relied upon a letter written to the defendant stating that the JCT Standard Form of Building Contract with Contractor’s Design “1988 Edition” was to apply. In the letter the dispute resolution provisions were mentioned specifically. The defendant argued that there was no such 1988 Edition, only the 1981 and 1998 Editions.
HHJ Havery held that the exchange of letters most likely constituted a contract between the parties. However, it was impossible to say whether adjudication provisions, if any, have been incorporated. The reference to the “1988 Edition” was most likely a typographical error, but it could easily have been a reference to the 1981 Edition of the contract or the 1998 Edition. In the absence of a date, the Judge may have inferred that the parties intended to use the latest edition. However, as it was impossible to say which form of contract was to apply the decision was made without jurisdiction and the Judge refused to enforce it.