Universal Sealants (UK) Ltd (t/a USL Bridgecare) v Sanders Plant And Waste Management Ltd

For the purposes of the Housing Grants Construction and Regeneration Act 1996, delivery of materials is excluded from “construction operations” unless the contract also provides for installation. “Installation” requires something additional to delivery: work done to the materials after delivery, or work related to them. Where wet concrete is poured directly on delivery, the pouring may form part of the delivery rather than a separate installation operation. The court also held that a contract for specified materials may be accepted by delivery, and that a delivery note issued after discharge has begun is too late to operate as a counteroffer.

The claimant sought summary judgment to enforce an adjudicator’s decision awarding it £52,259 for defective concrete supplied by the defendant. The defendant had participated in the adjudication while reserving jurisdictional objections.

The defendant argued that the adjudication had been commenced under the wrong contract and that the contract concerned only the delivery of concrete, falling within the exclusion in section 105(2)(d) of the Housing Grants Construction and Regeneration Act 1996. The central issues were whether a contract arose on the claimant’s subcontract order and whether that contract also provided for installation.

1. Contract formation. The claimant’s subcontract order for M50 concrete was accepted by delivery of concrete to site. The delivery note, which purported to contain different contractual terms, was produced after discharge had begun and was therefore too late to constitute a counteroffer. The contractual jurisdiction objection had no real prospect of success.
2. Statutory exclusion. Sections 104(1) and 105(1) identify contracts for construction operations to which the adjudication provisions apply. Section 105(2)(d), however, excludes the manufacture or delivery to site of materials unless the contract also provides for their installation.
3. Meaning of installation. The exception does not require the contract to use the word “installation”. It does require an additional operation beyond delivery, such as laying bricks or carrying out work on, or related to, the materials after delivery. The word “also” in section 105(2)(d) indicates that delivery and installation are distinct contractual activities.
4. Concrete. Although wet concrete is commonly poured as it is delivered, that characteristic did not make the pouring a separate installation operation on these facts. Delivery and pouring were the same act. The contract contained no additional provision for installation, and therefore fell within the statutory exclusion. There was at least a real prospect of success on this jurisdictional objection.
5. Summary judgment was declined. The adjudicator’s decision was not enforced on this application.

First-instance decision. No prior or appellate decision is stated in the judgment.