Be explicit: All Metal Roofing vs Kamm Properties

The Facts:

All Metal Roofing had been engaged by a main contractor, Kamm Properties, as a roofing subcontractor in respect of a mixed use development in Kilburn, London.

In late 2008 and early 2009 there was an exchange of correspondence where All Metal submitted a quote, and later submitted a revised quote. Following this exchange, Kamm issued a purchase order to All Metal which said, amongst other things, that the works were to be completed ’ASAP’. A dispute arose between the parties which was referred to adjudication by All Metal. All Metal was awarded approximately £30,000 by the adjudicator, which was not paid by Kamm.

At the enforcement hearing, Kamm submitted that there had been a meeting prior to the issue of the purchase order in which a specific completion date had been agreed, and accordingly the purchase order did not record in writing all of the agreed terms.

The Issue:

Was the whole of the contract in, or evidenced in, writing?

The Decision:

The Judge held that all of the terms of the contract were recorded in writing. The key question was whether All Metal and Kamm had agreed a certain date for completion.

The Judge decided that when the purchase order was sent out, it contained an obligation for time for completion which All Metal had to abide by; that is, as soon as possible:
“I do not have to determine today what ’as soon as possible’ actually meant in terms of completion on the ground, but it may be that that the meaning of this expression would have been informed as a matter of evidence by what had been said beforehand. The order went out and there was no contract at the very least until the purchase order went out. If the purchase order called for completion “ASAP” then that was something conceptually different from completion by a specific date, although it might come to the same thing as a matter of fact. The order was accepted, it seems to me, by the conduct of All Metal in continuing with or commencing work. So All Metal’s obligation was to complete as soon as possible and that is recorded in writing.”

Commentary:

This is another example of easily avoidable ambiguities in contracts resulting in court proceedings. Whilst it was ultimately a futile defence, the parties would have been better off agreeing a specific completion date ahead of time, so far as they could, and making sure it was properly recorded on the purchase order.

cfarrell@fenwickelliott.com
020 7421 1986