Durham County Council v Jeremy Kendall (trading as HLB Architects) [2011] EWHC 780 (TCC)

United Kingdom

Judgment Date: 31.03.2011

(1) The requirements of s107 of the Housing Grants, Construction and Regeneration Act 1996 (“HGCRA”) that the contract must be in writing might be satisfied even if a contract has been negotiated on a written basis with relatively vestigial terms (for example: “Please go ahead on the basis of your tender”). (2) Acceptance of an offer did not have to be recorded in writing if that acceptance did not contain any of the terms of the contract (e.g. acceptance by conduct). (3) Where a contract contains conditions that have to be fulfilled to bring certain obligations under the contract into effect, the fulfilment of those conditions did not have to be evidenced in writing. (4) Where the Notice of Adjudication and Referral Notice make reference only to the trading name of the responding party, then this will not invalidate enforcement proceedings against the responding party under his or her personal name, provided that it can be shown that the two names refer to the same legal person. (5) Where the responding party wishes to make a general reservation of rights in relation to the jurisdiction of the adjudicator, then it should be astute to potential arguments that the reservation is to be properly interpreted as being confined to the specific jurisdictional issues raised in the adjudication, and should draft its pleadings and submissions accordingly.

Technology and Construction Court, Akenhead J


The claimant (“Durham”) employed HLB Architects (“HLB” - a firm of architects of which the sole proprietor was the defendant, Mr Kendall) as Lead Consultant in connection with the design and construction of an extension to a leisure centre. No contract was executed, but HLB did take part in a tender process. The Brief included in the tender documents set out the obligations of the successful tenderer for the project and identified that the scheme was divided into four parts: Part 1 - Pre Feasibility Concept Development Ideas (already completed); Part 2 - Confirm Part 1 and Feasibility Study with Cost Plan and Detailed Presentation; Part 3 - Detailed Design, Bills of quantities and all Works prior to Tendering; Part 4 - Construction Works, Contract Administration and all Work up to and including final account. The Brief included a statement that "sufficient site investigations to determine ground conditions and location and adequacy of existing services will need to be carried out by the appointed Consultant once the outline details of the scheme are confirmed…" The tender submitted by HLB quoted a lump sum fee of £14,940 for Part 2 and percentages of final construction cost for Parts 3 and 4. HLB’s tender stated that it was open for acceptance for two months.

More than two months later, Durham emailed HLB stating that “the Council wish to appoint you as Lead Consultant”. The email stated that the Council did not have funding to proceed with the whole of the project but that in order to make progress the Council was prepared to fund Part 2 of the scheme only, and that “the cost of this work is as per your tender sum of £14,940.” . HLB subsequently met with Durham to discuss technical issues, including programme. The minutes of the meeting noted (among other things) that HLB would organise the site investigation and that HLB would revert to Durham on whether HLB would pay for the investigation. A little while later, Durham wrote to HLB referring to the discussion at the meeting and stating that the cost of site investigation should be included in the fee bid for the Feasibility Study as stated in the Brief. HLB carried out the Part 2 services, for which it was paid.

After the Part 2 services had been completed, Durham wrote to HLB confirming the Council’s request for HLB “to commence work on Part 3 of your tender”. Five months later, the Council wrote to HLB confirming the “Council’s intention to proceed with the project to construct” the extension to the leisure centre. HLB carried out the Part 3 and Part 4 services. It submitted and was paid invoices on the basis of agreed fees and rates for additional work as tendered for by HLB.

The parties subsequently fell into dispute concerning alleged design defects, and Durham referred the dispute to adjudication. The Notice of Adjudication and the Referral Notice were addressed to HLB Architects. In the adjudication, HLB argued that the adjudicator had no jurisdiction on the grounds that (a) there was no agreement in writing for the purposes of s.107 of the HGCRA, and (b) HLB did not exist as a legal person. In the exchanges made during the adjudication, HLB reserved its position in relation to the adjudicator’s jurisdiction on five occasions. On the first, third, fourth and fifth occasions the reservation was more or less in the same terms: that HLB “reserves the right to raise any or all of these points and the jurisdiction points previously raised and/or related points" (emphasis added). On the second occasion HLB used different language: that HLB “reserves the right to raise any jurisdictional and/or other issues, in due course, whether previously raised or not" (emphasis added).

The adjudicator considered that he had jurisdiction and decided that HLB should pay Durham £166k and should also be responsible for payment of his fees in the sum of £29k. HLB refused to pay and Durham issued proceedings against Mr Kendall trading as HBL Architects to enforce the adjudicator’s decision.


The Court was asked to address the following issues:

  • Whether all the terms of the contract between the parties were made or evidenced in writing for the purposes of s.107 of the HGCRA.
  • Even if all terms of the contract were in writing, whether there were in fact three separate disputes under three separate contracts relating respectively to Parts 2, 3 and 4.
  • Whether the fact that the party named as the responding party in the adjudication (HLB) was not the party named in the court proceedings (Mr Kendall) meant that as there was no decision which could be enforced against Mr Kendall.
  • Whether there had been an effective reservation with regards to the adjudicator’s jurisdiction.


The Court held:

  • On a proper construction of the communications between the parties and contemporaneous meeting minutes, it was clear that there was a single binding contract between the parties covering all the services. Because HLB’s tender was no longer open for acceptance, the Council’s email appointing HLB as Lead Consultant was a counter-offer. This counter-offer was accepted at the meeting which followed it or by HLB’s conduct in proceeding with the services thereafter. With regard to the site investigation, it was agreed at the meeting that HLB would organise this and later Durham confirmed that this would be at HLB’s cost.
  • On a proper interpretation of the communications and minutes, HLB was appointed as Lead Consultant for the whole project but in relation to Parts 3 and 4 only if and when funding was secured.
  • On the facts, all the terms of the contract between the parties were evidenced in writing. The Brief, HLB’s tender, the Council’s email appointing HLB as Lead Consultant and the minutes of the meeting evidenced the contract. As to the site investigation, the minutes of the meeting confirmed that HLB would organise this and later the Council confirmed that payment would be HLB’s responsibility, which was in any event clear from the terms of the Brief.
  • If one of the parties produces an agreed minute of a meeting, that is capable of being a written record for the purposes of s.107 of the HGCRA if and to the extent that the minute records agreement on a material term. It is not necessary under s.107 for acceptance of the offer to be evidenced in writing; what must be in or evidenced in writing are all the terms of the contract. Nor is it necessary for the satisfaction of the conditions that brought the Part 3 and 4 services into operation to be evidenced in writing.
  • In law HLB and Mr Kendall were one and the same person; HLB was merely a trading name of Mr Kendall. As such it was of no significance that the adjudication had been initiated against HLB but that the enforcement proceedings named Mr Kendall.
  • It followed from the above that it was not necessary for the court to consider whether HLB had reserved its rights effectively in relation to the adjudicator’s jurisdiction. However, the court noted: A general reservation with the use of appropriate wording should suffice to reserve the position of a defending party in adjudication. However it will be necessary to interpret what it is that the defending party has said (a) to determine whether a general reservation has been set up and (b) in appropriate cases whether the general reservation has been maintained.On the facts, it was clear that HLB had reserved its rights only in relation to certain specific jurisdictional challenges and had not made a general reservation of rights. It would therefore follow that, since none of the objections now raised in these proceedings (other than the identity of HLB) were specifically raised before the adjudicator, HLB or more properly Mr Kendall, had waived any rights to raise such objections in the present proceedings.
  • The adjudicator’s decision should be enforced.

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