T&T Fabrications Ltd and ors v Hubbard Architectural Metal Work Ltd

T&T Fabrications Limited and T&T Fabrications (a Firm) v Hubbard Architectural Metal Work Limited [2008] EWHC B7 (TCC)

Judgment Date: 21.04.2008

On the facts of this case, it was unclear on the evidence before the Court as to whether all the terms of the contract were in writing for the purposes of section 107 of the Housing Grants, Construction and Regeneration Act 1996 (the “Act”) and hence whether the adjudicator had jurisdiction. It followed that the adjudicator’s decision would not be summarily enforced.

Technology and Construction Court, HHJ Wilcox

Background

T&T Fabrications (“T&T”), a small family firm, entered into a contract with Hubbard Architectural Metal Work Limited (“Hubbard”) relating to the receipt and installation of a number of atrium bridges, staircases and other metalwork. Hubbard disputed three invoices issued by T&T. Four years after the work was completed, T&T issued a notice of adjudication. The adjudicator made an award in favour of T&T. However, about a year before that, the assets and liabilities of T&T (a firm) were assigned to T&T Fabrications Limited (“T&T Limited”). Hubbard failed to pay and T&T and T&T Limited therefore issued proceedings to enforce the award by way of summary judgment.

Issues

The Court addressed the following issues:

• Whether the adjudication pursued by T&T was valid and binding upon Hubbard given that the contract had by then been assigned by T&T to T&T Limited;
• Whether there was a contract in writing for the purposes of section 107 of the Act.

Decision

The Court held:

• On the facts, it was clear beyond doubt that T&T Limited had given T&T the necessary authority for the adjudication to be brought, and would be the recipient of any benefit and liability that flowed from such a reference. The fact that the adjudication had been brought in T&T’s name did not therefore make it an invalid adjudication.
• It is clear from RJT Consulting Engineers Limited v DM Engineering Northern Ireland Limited, that for section 107 to be complied with, all of the terms of the agreement should be reduced into writing, and not just the material terms.
• Hubbard contended that there were two terms, relating to scope, quality and essential programming that were agreed orally between the parties and not reduced into writing. T&T contended that no such terms were agreed. In an application for summary judgment, the Court was not in a position to adjudicate upon the weight of evidence and the creditworthiness of the witnesses, save where on paper matters appeared so manifestly absurd or wholly unlikely such as when contradicted by agreed contemporaneous documentation. That was not the position in this case.
• It was clear that a real dispute existed as to the agreement of these terms.
• There was an arguable case as to the question of jurisdiction, as the contract may not have been a contract in writing as required by section 107, and therefore the application for summary judgment failed.

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