Adjudication: Was There A Contract And/Or Was There a Contract Evidenced In Writing?

One of the changes due to be introduced to the adjudication legislative regime, is to scrap the requirement that only those contracts which are in writing or at least are evidenced in writing are suitable for adjudication. The case of Durham County Council v Jeremy Kendall (t/a HLB Architects) [2011] EWHC 780 (TCC) (31 March 2011), which came before Mr Justice Akenhead, and dealt with this very issue may therefore be one of the last of its type.

However the arguments raised before the Judge also related to the actual nature of the contract between the parties – something which is likely to become an increasingly important feature of adjudication as parties, where there is no written contract, put alternative arguments before the adjudicator about what the contract actually says and means.

Durham engaged Mr Kendall to be the lead consultant on the design and construction of an extension to Spennymoor Leisure Centre, in County Durham. Mr Kendall submitted his tender for the project, which was split into 4 parts, and the tender was stated to be open for 2 months. Durham sent an email to Mr Kendall after the expiry of this period, advising that it wished to appoint Mr Kendall. Shortly after, the parties met for a meeting, primarily to discuss technical issues, of which Mr Kendall took minutes. Part 1 was already complete, and parts 3 and 4 were dependent on external funding. Therefore, initially Mr Kendall was instructed to proceed with part 2 of the project only. Mr Kendall was subsequently instructed to proceed on parts 3 and 4.

A dispute arose between the parties as to whether a failure of the floor slab and subsequent water penetration, was caused by a design fault of Mr Kendall. Durham commenced an adjudication for loss and damage caused by the alleged design fault, and was awarded £166,930.53. The adjudication was commenced against HLB Architects, yet the enforcement proceedings were commenced against Mr Kendall.

The Issues:

Were all of the terms of the contract made or evidenced in writing? If all the terms were in writing, was there a single contract, or were there three separate contracts relating to parts 2, 3 and 4 of the project? and Because the responding party named in the adjudication was HLB Architects but Mr Kendall was named in the enforcement proceedings, could the decision be enforced against Mr Kendall? The Decision:

The adjudicator's decision was ultimately enforced by the Judge. The contract was held to be evidenced in...