Redworth Construction Limited v Brookdale Healthcare Limited
In the case of Redworth Construction Limited v Brookdale Healthcare Limited, the Technology and Construction Court judge re-emphasised that, in order to be able to adjudicate under the Housing Grants Construction and Regeneration Act, the contract must be evidenced in writing. Following the decision in RJT Consulting Engineers Limited v DM Engineering (Northern Ireland) Limited, which is a Court of Appeal decision, the law is that all of the essential terms of the contract, apart from the trivial, have to be in writing. There is a possible fallback position because one of the judges in the Court of Appeal thought that the terms of the agreement material to the issues in the adjudication had to be evidenced in writing but not unrelated terms.
In the Redworth v Brookdale case no formal contract was executed. In April 2003 Redworth sent out a draft employer’s requirements stating that the conditions of contract would be that the JCT With Contractor’s Design form. Some of the items of the appendix were provided but not dates for possession and completion. An updated version of this document was sent out in September 2003. At a meeting in November 2003 the contract price was agreed and further matters such as liquidated damages and the commencement and the completion dates but the JCT terms were not then discussed. A further version of the employer’s requirements was produced in December 2003 and in February 2004 Redworth wrote to Brookdale stating that a contract had been “verbally agreed”.
Disputes were referred to adjudication by Redworth. The adjudicator concluded that there was a construction contract in writing incorporating the JCT terms and went on to make a decision, ordering payment to Redworth. When Redworth applied to enforce the adjudicator’s decision Brookdale stated that there was no contract in writing and the adjudicator had no jurisdiction. Perhaps unwisely, before the court Redworth relied on the December 2003 draft employer’s requirements, which it had not relied on when arguing jurisdiction before the adjudicator. The judge decided that there was no contract in writing and the judge went on to say that where a party elects to put its argument in a certain way in order to obtain the benefit of an adjudicator’s decision, it should not be allowed to change its case.
