Aceramais Holdings Ltd v Hadleigh Partnerships Ltd

A construction contract may be an agreement in writing for the purposes of section 107 of the Housing Grants, Construction and Regeneration Act 1996 even though it has not been signed by both parties, where the written document records the terms agreed or evidences an agreement made otherwise than in writing. A court should intervene in an ongoing adjudication by granting declaratory relief only in rare, clear-cut cases where the issue can be determined quickly. Where the jurisdiction issue requires a substantial trial, the appropriate course will ordinarily be to raise it at enforcement. Non-compliance with an unless order requiring a proper disclosure statement may cause the claim to stand struck out.

The claimant owned a development site at Wellington Square. The defendant carried out building work and served notice of adjudication after a dispute arose. The claimant sought a declaration that a JCT contract dated 14 March 2008 was not an agreement in writing under section 107 of the Housing Grants, Construction and Regeneration Act 1996, so that the adjudicator lacked jurisdiction.

The claimant also alleged that the development arrangement was instead an oral agreement with the defendant’s principals. The defendant relied on the JCT Design and Build form, signed on its behalf but not by the claimant, and argued that the claim had been struck out for failure to comply with an unless order concerning disclosure. The court had to determine the written-contract issue, the disclosure consequence and whether declaratory relief should be granted during the adjudication.

1. Contract in writing. The parties contracted on the JCT 2005 Design and Build standard form. The 14 March 2008 document set out the agreed terms and fell within section 107(2)(a) and (c) of the Housing Grants, Construction and Regeneration Act 1996, despite not being signed by Aceramais. The case was materially different from Redworth Construction Ltd v Brookdale Healthcare Ltd [2006] BLR 366, which concerned an agreement in principle to agree a JCT form.
2. Disclosure. The unless order required a disclosure statement completed by an appropriate person under rule 31.10 of the Civil Procedure Rules 1998. The person who signed Aceramais’ statement was not shown to be an officer, employee or authorised representative and did not understand the disclosure obligations. The claim therefore stood struck out at the close of business on 27 April 2009.
3. Declaratory relief during adjudication. The court adopted the guidance in Dorchester Hotel Ltd v Vivid Interiors Ltd [2009] EWHC (TCC). Intervention in an ongoing adjudication should be exercised very sparingly and is appropriate only in rare, clear-cut cases. Where the jurisdiction issue requires disclosure, witness evidence and a trial, it should ordinarily be raised at enforcement, since an adjudicator’s decision has only temporary effect. The present application was also disproportionate and risked unfairly delaying enforcement.
4. The claim was struck out. In any event, the claimant was not entitled to the declaration because the parties had contracted in writing and the court would have declined relief even if the claimant had established the contrary. It was unnecessary to decide estoppel by convention or acquiescence.