All Metal Roofing v Kamm Properties [2010] EWHC 2670 (TCC)

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 (1) Where there was an oral agreement preceding the issuance of a purchase order in relation to a construction contract, this would not preclude the contract from being “in writing” for the purposes of s.107 of the Housing Grants, Construction and Regeneration Act 1996 (the “Construction Act”) in circumstances where the purchase order contained a term which was different from that agreed orally.  (2) Though it was not necessary to decide the case, and therefore not of binding authority, the Court was of the opinion that a reservation of rights with regards to the jurisdiction of an adjudicator would be effective if made within a very short period of time of putting in the first document described as a “Defence” which set out the grounds upon which such a reservation could have been made and before anyone acted on that “Defence” to its detriment, notwithstanding the fact that this first so-called “Defence” did not contain an express reservation of rights.

Technology and Construction Court, Mr Justice Akenhead


The clamant roofing subcontractor (“AMR”) was employed by the defendant main contractor (“Kamm”) in respect of a project to build offices and residential accommodation.  Before Kamm issued a purchase order, it had a meeting on site with AMR and agreed orally with AMR that the works were to be finished by a specific date.  After this meeting a purchase order was issued.  The purchase order stated that the delivery date for the works was “ASAP”.  The parties fell into dispute with regards to the progress of the works.  Kamm refused to pay one of AMR’s invoices, but did not serve a withholding notice.  AMR referred the matter of the unpaid invoice to adjudication.  In a document titled “Defence” which was specifically stated to relate to the Notice of Adjudication, Kamm alluded to the oral agreement but did not make a specific reservation of rights.  However, two days later Kamm did reserve it rights with regards to the adjudicator’s jurisdiction in a second document titled “Defence”.  This document was specifically stated to relate to the Notice of Referral.  It alleged that the contract was not “in writing” for the purposes of s.107 of the Construction Act and that the adjudicator therefore had no jurisdiction to decide the dispute.  The adjudicator decided that Kamm should pay AMR the disputed invoice sum plus AMR’s costs of the adjudication and his fees.  Kamm did not pay and AMR sought to enforce the decision by way of summary judgment.


The Court addressed the following issue:

  • Whether the contract was “in writing” for the purposes of the Construction Act, and therefore whether the adjudicator had jurisdiction to decide the dispute.
  • Whether Kamm had waived its ability to challenge jurisdiction by the failure to make a reservation in the first so-called “Defence”.


The Court held:

  • On the facts of this case, the adjudicator had jurisdiction.  Whatever was orally agreed prior to the issue of the purchase order with regard to the date of completion, the purchase order that was actually sent out was one that called for delivery “ASAP”.  “ASAP” is something conceptually different from completion by a specific date.  The order was accepted by the conduct of AMR in commencing work.  AMR’s obligation was to complete “ASAP” and that was recorded in writing.
  • In view of the Court’s finding that the adjudicator did have jurisdiction, it was not necessary to decide whether Kamm had waived its right to challenge the decision on the basis of lack of jurisdiction   However, the court indicated that it would probably have decided that there had not been such a waiver. 
  • The first so-called “Defence” did not reserve the position on jurisdiction; whilst it said there had been an oral agreement, it did not seek to make a jurisdictional point.  But it was only two days later that the further written Defence was submitted, which, undoubtedly, did make an effective reservation of jurisdiction..
  • Kamm had made a reservation within a very short period of time of putting in the first Defence and before anyone acted on the Defence to its detriment, and it was therefore very doubtful whether a two-day period in such circumstances, in the context of the first Defence, could be said to amount to an effective waiver of the right to raise a jurisdictional objection.  
  • The decision of the adjudicator would be enforced.

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