[2019] EWHC 2360 (TCC)

This was an application for summary enforcement of an adjudicator’s decision. USL were engaged by A One+ Integrated Highways Services to carry out works on the A1 in Gateshead. Sanders supplied concrete as part of those works. A dispute arose over whether the right type of concrete had been supplied and whether or not it was fit for its purpose. Sanders participated in the adjudication, having reserved its right to contest jurisdiction. Sanders said that the adjudication was commenced under the wrong contract and also that the HGCRA did not apply because the delivery of concrete fell within one of the exceptions in s. 105(2)(d).

In terms of the contract position, there was evidence about phone calls and emails. However, the key event was the sending by USL of its subcontract order. The order referred to the grade of concrete, the rate and a delivery charge. The subcontract order referred to USL’s terms and conditions, which could be found via a link on the internet. USL’s case was that the initial phone calls were an invitation to treat and that the subcontract order was an offer to purchase M50 concrete, which offer was accepted by the delivery of concrete to the site.

Mrs Justice Jefford agreed. The order was accepted by the delivery of the concrete to the site. There was then a concluded contract on the terms of that order. The production of the delivery note on different contract terms was too late to be a counteroffer.

The second issue was whether or not there was a “construction contract” for the purpose of the HGCRA. If there was not, there was no right to refer the matter to adjudication. Now the placing of concrete could fall within the definition of “construction operations”, including the “manufacture or delivery to site of — (i) building or engineering components or equipment, (ii) materials, plant or machinery . . . except under a contract which also provides for their installation”.

The contract was for the supply of concrete. There was no express reference to installing the concrete in the subcontract order and no rate or price for doing so. Sanders said that this was a contract for the supply of materials, not one that also provided for their installation so as to fall within the exception to the exclusion. The question for the court was: can you install concrete? The supply of concrete to a site, which is what Sanders said they did, was to the Judge “patently within the exclusion” unless the exception applied, because it is quite simply the delivery of materials.

It was accepted that you do not normally talk about installing concrete. However, the key was what happened. The Judge explained that you can supply bricks to a site, an act which would fall within the exclusion unless you also laid them. The key is that some work is done to the materials after delivery. Both sides agreed that concrete, once it is mixed, starts to set. So the Judge concluded:

“In this case, the act of delivery and pouring amount to the same thing. That … means that the pouring is … part of the delivery and not an additional act of installation involving some work on, or related to, the materials. There is nothing in this contract which also provides for installation. It is simply the case that in order for the materials to be delivered to site in the normal way the concrete will be poured where it is required, rather than, as would be unusual, placed into some sort of storage facility until it could be poured by someone else.”

The decision was not enforced.