Certainty is a great thing but construction projects are often carried out without an executed contract in place. If there is a dispute that ends up in legal proceedings, the court may then have to analyse what the parties have said, which may be unclear, making the best sense of it that they can. In Goldsworthy v Harrison builders carried out works for the Harrisons, who were residential occupiers. The Harrisons envisaged using the JCT Minor Works contract form but a contract using that form was only sent out for signature over a year after the works had started. The builders declined to sign but subsequently went to adjudication and obtained an award on the basis that the Minor Works form, and, therefore, adjudication applied. Adjudication would not other- wise have applied to the Harrisons because they were residential occupiers. The builders then asked the court to enforce the award but the Harrisons claimed that the Minor Works form did not apply.

The court noted that whether there is a binding contract and, if so, its terms, depends on what they have agreed. This requires consideration of communi- cations between them, by words or conduct, and whether that leads objectively to a conclusion that they intended to create legal relations and had agreed all the terms which they or the law regards as essential to create a contract. It is possible that they might agree  to be contractually bound by agreed terms even though they defer other important matters to be agreed later and contracts may come into existence, not as a result of offer and acceptance, but during and as a result of performance. It can consequently be appropriate to look at the parties’ conduct in order to determine whether and how a contract was made.

In all the circumstances, without fuller evidence from both sides, the judge found it impossible to say that there was not a triable issue as to whether the parties agreed, with contractual effect to the application of the Minor Works terms (with appropriate gaps). The application to enforce the adjudicator’s award by summary judgment therefore failed.

Goldsworthy & Ors (t/a Goldsworthy Builders) v Harrison & Anor [2016] EWHC  1589