All Metal Roofing v Kamm Properties Ltd

A construction contract falls within the statutory adjudication regime only where all its terms are in writing or evidenced in writing. An adjudicator lacks jurisdiction over a dispute arising under a contract if a material term was agreed orally and was not subsequently recorded. However, an earlier oral discussion does not necessarily prevent jurisdiction where the contract later formed by written documents contains a different, written obligation. A purchase order requiring completion as soon as possible was conceptually distinct from an oral obligation to complete by a specified date. Acceptance of that written term could be inferred from conduct. The court enforced the adjudicator’s decision. A prompt written reservation of jurisdiction was unlikely, on these facts, to amount to waiver, but that issue was not determinative.

All Metal Roofing Limited, a roofing subcontractor, obtained an adjudication decision requiring Kamm Properties Limited, the main contractor, to pay an unpaid invoice, interest and adjudication costs. Kamm resisted enforcement, principally arguing that the adjudicator lacked jurisdiction because the parties had orally agreed a completion deadline which was not contained in the written subcontract.

The written quotation and purchase order described the works and required delivery as soon as possible. Kamm also relied on alleged oral discussions before the purchase order and on delay. The central issue was whether those discussions created an unwritten contractual term affecting the statutory requirement for a construction contract to be wholly in writing.

1. Enforcement. Judgment was given for All Metal. The adjudicator had jurisdiction and his decision was enforceable.
2. Written contract requirement. Following RJT Consulting Engineers Limited v. DM Engineering (Northern Ireland) Limited [2002] BLR 217, all contractual terms, not merely material terms, must be in writing or evidenced in writing for the statutory adjudication regime to apply. An adjudicator has no jurisdiction over a dispute arising under a contract containing an oral term which has not been so evidenced.
3. Effect of the alleged oral deadline. The court accepted for present purposes that a completion arrangement might have been discussed before the purchase order. It nevertheless held that the purchase order required delivery and completion as soon as possible. That written obligation was conceptually different from completion by a specified date, even if the two might produce the same result on the facts. All Metal accepted the order by commencing or continuing work. The relevant obligation was therefore recorded in writing, and the alleged earlier oral discussion did not deprive the adjudicator of jurisdiction.
4. Delay and reservation. The court did not determine the merits of the delay complaint. The adjudicator was not obviously wrong to disregard Kamm’s cross-claim in the absence of a withholding notice under Part 2 of the 1996 Act. Although Kamm’s first defence did not reserve jurisdiction, its further defence two days later probably made an effective reservation. That issue would, standing alone, have been decided against All Metal.