WHEN IS A CONSTRUCTION CONTRACT ‘IN WRITING’?

In Rok Building Ltd v Bestwood Carpentry Ltd [2010] EWHC 1409 (TCC), [2010] All ER (D) 194 (Jun) Mr Justice Akenhead held that the parties had not entered into a construction contract ‘in writing’ which satisfied the requirements of s107 of the Housing Grants, Construction and Regeneration Act 1996. It followed that the adjudicator did not have jurisdiction to decide the matters which had been referred to him. While Akenhead J accepted that s107 does not require that the actual price of the works be expressly recorded in writing, he held that the requirements of the section are not satisfied where written confirmation is received that the price has been agreed orally but that confirmation does not evidence what the agreement was. However, he did accept that s107 does not preclude the implication of a term into a contract as a matter of law. It follows that, in the case where a construction contract is silent as to the price to be paid, it may be possible to imply into the contract a term that a reasonable price is to be paid and that such a contract will still be a ‘construction contract … in writing’ for the purposes of s107.