Debeck Ductworth v T&E Engineering Ltd [2002] BM250063

This summary was provided by CMS Cameron McKenna LLP.

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If a claimant seeks to say that a contract is evidenced in writing pursuant to Section 107(4) of the 1996 Act, he will have to show that the writing evidences the whole of the agreement, not part of the agreement. RJT Consulting Engineers v DM Engineering Northern Ireland Limited followed

Her Honour Judge Kirkham, Birmingham District Registry

14 October 2002

T&E entered into a contract to install air conditioning services for Eli Lilly Pharmaceuticals in Basingstoke. Debeck entered into an oral subcontract with T&E whereby Debeck agreed to undertake work of installation of ductwork for £27,000 plus VAT. The work was to be undertaken in two stages, a first fix and a second fix during March and April 2001. Debeck sought to recover the agreed sum plus a further sum of £3204 plus VAT in respect of some extra work said to have been carried out.

The claim was based under two broad headings. The first was pursuant to the 1996 Act and the second was simply on the pleaded and factual basis.

Debeck relied upon Section 107(2)(c) and 107(4) of the 1996 Act which provides that there is an agreement in writing (necessary for the application of the 1996 Act) if the agreement is "evidenced" in writing. Sub-section (4) provides that "an agreement is evidenced in writing if an agreement made otherwise than in writing is recorded by one of the parties or by a third party with the authority of the parties to the Agreement".

Reference was made to R J T Consulting Engineers v D M Engineering Northern Ireland Limited. Debeck argued that there was an agreement which was evidenced in writing. It relied on a fax sent to T&E which, it submitted, contained all the relevant terms of the agreement and was therefore sufficient to constitute written evidence of the agreement.

The Judge rejected that submission on factual grounds. The Judge relied on the decision in the RJT case in which HHJ Humphrey LLoyd said that the writing must evidence the whole of the agreement. The fax on which Debeck relied contained some of the terms of the agreement but did not refer to additional terms which T&E said were agreed orally and were important to them.

HHJ Kirkham said that if a claimant wished to obtain the benefit of the protection of the 1996 Act, it should require the contract to be reduced to writing. Alternatively it could clarify in writing the terms that it believed had been agreed orally and invite the other contracting party to agree them.

In the circumstances, the Judge decided that the contract was not a contract in writing and therefore was not subject to the provisions of the 1996 Act.

If a claimant seeks to say that a contract is evidenced in writing pursuant to Section 107(4) of the 1996 Act, he will have to show that the writing evidences the whole of the agreement, not part of the agreement. RJT Consulting Engineers v DM Engineering Northern Ireland Limited followed.

This summary was provided by CMS Cameron McKenna LLP.

For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes

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