Cases - Bryen and Langley Ltd v Martin Boston
Record details
- Name
- Bryen and Langley Ltd v Martin Boston
- Date
- [2004]; [2005]; [2005]
- Citation
- AII ER 61; EWCA Civ 973; AII ER (D) (Jul)
- Legislation
- Keywords
- Construction contract – civil procedure – adjudication – JCT standard form contract – letter of intent – signature - agreement to enter into formal contract – acceptance by conduct - whether parties already agreed to enter into contract before letter of intent
- Summary
-
This case arose out of the attempted enforcement of an adjudicator's decision, the principal issue being whether the contract as evidenced by a Letter of Intent included the JCT terms.
If the letter did include the JCT terms then the adjudicator's decision would be enforced. If it did not then the adjudicator had no jurisdiction.
The key letter was a letter of intent dated 12 June 2001 that was written by Mr Boston's representative and stated:
'I can now confirm on behalf of our client, Mr Martin Boston, that it is his intention to proceed with the works with your Company in accordance with your Tender and subsequent amendments ... The Contract will be executed under the Standard Form of Contract 1998 Edition, Private with Quantities and, should the project not proceed, your reasonable ascertainable costs will be recoverable from the Client but will not include any loss of profit or overhead recovery. The Contract Documents will be drawn up shortly.'
The Contract Documents were never signed.
At first instance the judge accepted the arguments that the letter was in the nature of a preliminary agreement that looked forward to the signing of an agreement in the future that would incorporate the JCT Form and he agreed that the contract the letter evidenced did not itself do so. He concluded, therefore, that the contract evidenced by the letter did not constitute a contract in JCT Form, although he made no findings as to the terms of the contract that it did evidence.
This decision was over-turned in the Court of Appeal where the judges found that at 12 June 2001 there was nothing left for the parties to agree. The mere fact that the letter giving instructions to proceed envisages the execution of further documentation, does not preclude the court from concluding that a binding contract was none the less entered into, provided that all the necessary ingredients of a valid contract are present. The commercial reality was that, by 12 June 2001, they had agreed all the terms, including the terms of the JCT Form, and when B&L started work on the property in June they were doing so on those terms.
The point of note is that the parties spent large sums on legal costs taking this matter to the Court of Appeal when a bit of extra focus at the beginning of the job might have seen the contract signed.