Mast Electrical Services v Kendall Cross Holdings Ltd [2007] EWHC 1296 (TCC)

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Mast Electrical Services (as trading division of John W & S Dorin Limited) v Kendall Cross Holdings Limited [2007] EWHC 1296 (TCC)

Judgment Date: 17.05.2007

Where documents fail to set out, record or evidence all the material terms of a contract, they will not amount to a construction contract in writing for the purposes of s.107 of the Housing Grants, Construction and Regeneration Act 1996 (the “Act”).

Technology and Construction Court, Mr Justice Jackson


The defendant contractor (“Kendall”) was invited to tender by Your Homes Newcastle Limited (“YHN”) for the refurbishment of local authority homes.  Kendall sent out tender documents for electrical works to prospective sub-contractors.  The claimant (“Mast”) submitted a tender to Kendall, subsequently revised.  Kendall submitted its own tender to YHN.  The part of its tender that related to internal refurbishment of multi-storey blocks was based on the relevant part of Mast’s revised quotation.  Kendall’s tender for the refurbishment of multi-storey blocks was successful.  Kendall wrote to Mast advising it that Kendall had been successful in its tender and instructing Mast to carry out surveys in relation to two multi-storey blocks (“Block A” and “Block B”).  Based upon these surveys, Mast provided revised quotations in respect of each Block.  Thereafter, correspondence and further quotations passed between the parties.  Mast duly carried out and completed the works but the parties fell out over payment, and, in particular, agreed rates.  Mast also submitted a number of quotations for works to a third property (“Block C”) and undertook works with regard to the same.  A similar dispute arose with regards to the same. 

Mast subsequently commenced an adjudication in respect of Block A, claiming £169k.  Kendall submitted that there was no contract in writing and the Adjudicator therefore lacked jurisdiction. The Adjudicator agreed with Kendall, and resigned.  Mast did not pursue adjudications for Block B and Block C.  Mast commenced proceedings for declarations that the documents that passed between the parties with regards to Blocks A, B and C were written contracts for the purpose of s.107 of the Act.


The Court addressed the following issue:

• Whether there were contracts in writing between the parties for the purposes of s. 107 of the Act.


The Court held:

  • In deciding whether a construction contract satisfied the requirements of s. 107, the Court was obliged to follow the approach set out in paragraphs 12 to 16 of the judgment of Ward LJ in RJT Consulting Engineers Ltd v DM Engineering (Northern Ireland) Ltd.

  • On the facts, in the case of each of the Blocks, none of the documents relied upon by Mast as constituting a contract in writing satisfied the requirements of s. 107 of the Act.

  • This was because those documents did not set out, evidence or record all material terms of Mast's sub-contract. In particular, they did not set out, evidence or record any agreed rates of payment for Mast's work.

  • It might well be that there were in fact no contracts between the parties and that Mast would be entitled to payment on a quantum meruit basis.  However, this was not a matter that the Court was required to decide in the current litigation.

  • It was unfortunate that Mast’s claims for outstanding payment were thwarted and to avoid further delay the court would recommend that if Mast decided to pursue its claims for outstanding payment by litigation, it would be appropriate for such litigation to be expedited.

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