Holmes & Hills Solicitors was instructed by a scaffolding contractor to commence an adjudication against a main contractor in relation to unpaid sums of approximately £168,000 arising from works carried out on a construction project.
The dispute raised a complex issue of contract formation, which was critical to the outcome of the adjudication.
Following a request to tender, the scaffolding contractor submitted its order form incorporating its own standard terms and conditions and subsequently commenced works on site. More than a month later, the main contractor issued a subcontract order containing alternative terms and conditions and requested that it be signed.
The scaffolding contractor responded stating that it had “thoroughly reviewed” the subcontract order and proposed several amendments, concluding by requesting an updated order for further review.
The main contractor argued that this response demonstrated an intention to accept its terms, relying heavily on the use of the word “thoroughly”. This issue was significant, as acceptance of the main contractor’s terms would have allowed it to set off the full payment application against alleged damage to the property, defeating the scaffolding contractor’s claim entirely.
Holmes & Hills LLP construction solicitors commenced adjudication proceedings seeking a decision that the applied-for sum was payable. A key issue for the adjudicator was determining which party’s terms governed the contract, requiring detailed consideration of the parties’ correspondence and conduct.
Holmes & Hills argued that the scaffolding contractor had not intended to be bound by the main contractor’s terms and had anticipated carrying out a further review once the proposed amendments had been incorporated. Particular emphasis was placed on the concluding request for an amended subcontract order “for our review”.
The adjudicator agreed with Holmes & Hills’ submissions and concluded that the scaffolding contractor had not accepted the main contractor’s terms. The adjudicator therefore found that the scaffolding contractor’s standard terms applied, preventing the proposed set-off and enabling the contractor to succeed in its payment claim.
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