Durham County Council v Jeremy Kendall (t/a HLB Architects)

For adjudication under the Housing Grants, Construction and Regeneration Act 1996, the contract and all its terms must be made or evidenced in writing. A contract may be evidenced by a collection of documents, including an accepted tender, correspondence and an agreed meeting minute. Acceptance need not itself be recorded in writing where unequivocal conduct establishes it. Where a written contract contains conditions subsequent, their later satisfaction need not separately be evidenced in writing. The court must identify the substance of the agreement objectively; staged performance does not necessarily create separate contracts. A clear reservation preserves a known jurisdictional objection, but participation without reserving a particular objection may waive it. A sole trader may be proceeded against under the trading name used in the contract.

Durham County Council sought summary judgment to enforce an adjudicator’s decision requiring payment by Jeremy Kendall, who traded as HLB Architects. The adjudication concerned alleged defects in the design of a concrete floor at a leisure-centre project.

Kendall resisted enforcement on three principal grounds: that the underlying agreement was not wholly in writing for the purposes of section 107 of the Housing Grants, Construction and Regeneration Act 1996; that Parts 2, 3 and 4 were governed by separate contracts; and that the adjudication had proceeded against HLB Architects rather than Kendall personally. The court also considered, although it did not need to decide, whether jurisdictional objections had been waived.

1. Enforcement. The adjudicator had jurisdiction and the decision was enforceable. Judgment was given for Durham.
2. Single contract. Kendall’s tender was an offer, but it lapsed after the stated two-month acceptance period. Durham’s email of 8 August 2003 was a counter-offer. The meeting on 12 August, its agreed minute and HLB’s subsequent performance established acceptance. The parties intended one appointment as lead consultant for the whole project. Funding for Parts 3 and 4 operated as a condition subsequent, rather than creating separate contracts.
3. Written evidence. The tender, Lead Consultant’s Brief, email and meeting minute evidenced the contract and its terms. The later letter of 10 September 2003 recorded the agreement that HLB would bear the site-investigation cost. Section 107 requires the terms of the contract to be in or evidenced by writing, but does not require the acceptance or satisfaction of a condition subsequent to be separately recorded where the underlying agreement is evidenced in writing. The objective approach in Allen Wilson Joinery Ltd v Privetgrange Construction Ltd [2008] EWHC 2802 (TCC) was applicable.
4. Additional services and identity. Mr Pirrie’s involvement was an additional service under the existing contract and was in any event evidenced in writing. HLB Architects had no legal existence separate from Kendall, its sole proprietor. Proceedings under the trading name therefore proceeded against Kendall in substance.
5. Waiver. The specific reservations preserved only the jurisdictional points identified or related to them. The general reservation was not maintained in the Response, which made clear that only the specific objections were being pursued. The unraised objections would consequently have been waived. This conclusion was unnecessary to the result because the objections failed on their merits.