Allen Wilson Joinery Ltd v Privetgrange Construction Ltd [2008] EWHC 2802 (TCC)

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All express terms of the contract must be recorded in writing for the contract to come within Part II of the Housing Grants, Construction and Regeneration Act 1996 (“HGCRA”), not just those material to the issues under adjudication.  However, implied terms will not cause an otherwise written contract to fall outside the operation of Part II. 

Mr Justice Akenhead, Queen’s Bench Division, Technology and Construction Court


Privetgrange Construction (“PC”), the main contractor in a development known as Silverwood, engaged Allen Wilson Joinery (“AWJ”) as a sub-contractor to manufacture, deliver and install three flights of stairs.  The parties first made contact in May 2007 following which PC provided AWJ with plans and a section detail illustrating (very broadly) the stairs’ position in the development.  In June 2007, AWJ issued a “budget quotation” which set out details of what was covered and a budget price of £19,673 + VAT.  This formed the basis for the contract ultimately agreed between the parties.

Over the next few months AWJ did a site survey and sent PC a number of drawings detailing the stairs’ appearance and dimensions.  In January 2008 AWJ began installing the stairs.  In February 2008 the Architect rejected the stairs as unacceptable and AWJ was not paid.  AWJ therefore commenced an adjudication under the Scheme for Construction Contracts (“the Scheme”) seeking payment for the work it had carried out. 

The Adjudicator found that AWJ was entitled to payment (albeit slightly less than the sum claimed) and interest.  PC refused to pay, so AWJ sought enforcement by way of summary judgment.


PC opposed enforcement on the grounds that:


  • the adjudicator had had no jurisdiction to decide the dispute:  section 107 of the Housing Grants, Construction and Regeneration Act 1996 (“HGCRA”) says that the HGCRA only applies to contracts that are in writing.  PC alleged that (a) various matters were only agreed orally (in particular, that AWJ would design as well as manufacture and install the stairs and that completion would be achieved within 8-12 weeks); and (b) there was an implied term that there would be no sub-contracting; and
  • even if the adjudicator had jurisdiction generally, he had no jurisdiction under the Scheme to award interest.


Section 107

The Court held that (1) the correct interpretation of section 107 is that all the terms of the contract must be in writing and recorded in one of the ways contemplated by that section.  (2) “Trivial” matters which had only been agreed orally would not cause a contract to fall foul of section 107, but what was trivial had to be determined objectively in relation to the particular contract and parties concerned.  (3) The presence of implied terms would not take an otherwise written contract under section 107 outside the operation of the HGCRA and the alleged implied term of no sub-contracting was therefore irrelevant.

In this instance, the Court held that the evidence provided by PC that some of the terms had been agreed orally was sufficiently strong to require that it be decided at a full trial.  The court therefore refused to enforce the adjudicator’s award.  However, PC was permitted to defend the case only on condition that it paid £10,000 into court, on the basis that some of the facts upon which it relied appeared “somewhat improbable”. 


Following Court of Appeal authority, the Court found that, under paragraph 20 of the Scheme, the adjudicator had no freestanding power to award interest: the Adjudicator could only make decisions on questions of interest where those questions (1) were among the matters in dispute that had been properly referred to him, (2) had been agreed by the parties to be within the scope of the adjudication, or (3) were questions that the adjudicator considered to be necessarily connected with the dispute.  None of these applied in the present case.  Therefore, regardless of the outcome on the section 107 point, the Court held that the Adjudicator did not have jurisdiction to award interest.

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