In absentia: Jean Shaw vs James Scott Builders

’Psst. ’Ere’s an offer you can’t refuse. Gimme £500 and I’ll have my Thai friend send you a designer watch in the post. Real thing, mate. Trust me.”

Now I expect you would react to an offer like that with the contemptuous silence it deserves. And, relying on the legal maxim that silence cannot be deemed acceptance of an offer, you can be confident you’ll have the full protection of the law. Usually.

However, the recent decision in Jean Shaw vs James Scott Builders (a Scottish case, but of persuasive value further south) warns us that, on rare occasions, silence can imply acceptance. The story starts as a fairy tale but rapidly develops into a Greek tragedy.

In December 2001, Mr and Mrs Shaw employed an architect called White to design their dream retirement home in the picturesque Glentrool Forest. They also hired a contractor called Scott to build it for a guide price of £598,000. The parties relied on an unwritten, informal agreement with little detail on terms, and sealed by no more than an optimistic handshake.

They then skipped off hand-in-hand, snubbing cumbersome legal niceties with carefree abandon - and soon found themselves engulfed in a mire of confusion and discontent. All sorts of problems emerged. The design was incomplete and the construction was delayed. The architect became hard to track down, although, to be fair, that was because he was unavoidably detained. At Her Majesty’s pleasure. For fraud.

As White had proved himself to be anything but that, the Shaws tried their luck with a Grime. Grime must have felt that he had been placed in a maze with no exit. Not only were there no contractual documents, but there was little documentation of any kind. Apparently there were no copies of original drawings and no warranty for the foundations; there weren’t even any drawings for certain facilities, so the contractor, Scott, had to leave gaps for them to be installed when and if they were designed. Mr and Mrs Shaw probably thought things could only improve. They were wrong.

All sorts of problems emerged. The design was incomplete and the work was delayed. The architect became hard to track down, although, to be fair, that was because he was unavoidably detained. At Her Majesty’s pleasure

In a desperate attempt to bring an element of sanity to a crazy situation, the Shaws appointed a QS called Percy to negotiate a formal building contract with Scott. With a third construction professional on the task, this may appear to be a case of too many cooks. Indeed, the Shaws might be forgiven for thinking that they would have had more luck if they had, in fact, appointed a cook from the outset.

Percy advised the Shaws that they were not in a contract with Scott. This was actually not legally correct, as an oral contract to carry out the work for a reasonable price did exist. It was just all the detail that was missing. Percy then emailed formal contract terms to the Shaws, copying in Grime and Scott. He asked all the parties to email him back by 28 November if they objected. The Shaws did accept the terms, but the contractor, Scott, did not reply. This was the crux of the issue. Was Scott in contract on those formal terms, which were ones he later disputed?

Grime’s predecessor, White (before being marched off to his new abode) would habitually communicate verbally with Scott because Scott “was not comfortable using email”. One might ask who is, given the rate they pop up on your screen, but there does seem to be an element of doubt as to whether Scott read Percy’s email in time.

Percy advised the Shaws that a formal contract was in place. This was another bold piece of advice, as that was really a question for legal debate. Indeed, it turned out to be precisely that, in the Scottish Court of Session in May.

However, some certainties could be established. The parties had already been in an informal contract. Scott was aware of the intention to formalise the contract terms and had appeared to agree orally to their intent. He had been advised that a final version of the contract would be sent to him, so he was on notice of its impending arrival. Finally, it was only when the Shaws referred a loss and expense claim from Scott to adjudication that Scott first denied there was a formal contract.

In the context of these circumstances and Scott’s conduct, silence was, unusually, taken by the court to be acceptance of the contractual terms.

But enough of all that. Back to our deal on the watch. It’s on its way to you and I’ll be expecting your cheque in the post.

Melinda Parisotti is an in-house barrister at Wren Managers, which manages a professional indemnity mutual for architects