Durham engaged Mr Kendall to be the lead consultant on the design and construction of an extension to a leisure centre. Mr Kendall submitted his tender for the project which was stated to be open for two months. After the expiry of this period, Durham sent an email to Mr Kendall advising that they wished to appoint him. The work was split into four parts, three of which relied on external funding. Part one was already complete. Mr Kendall was instructed then to proceed only with part two of the project and, subsequently, with parts three and four.

A dispute arose between the alleged failure of the below ground concrete floor gymnasium and the subsequent water penetration caused by an alleged design fault.

At enforcement of the Adjudicator’s Decision; Kendall argued:

1. Not all the terms of the contact were made or evidenced in writing;
2. Even if all terms of the contract were in writing there were three separate disputes under three separate contracts relating respectively to parts two, three and four; and
3. The Defendant in the Court action was not the same as the Responding Party in the Adjudication and, because there was no decision against Kendall in the Court proceedings, Durham could not enforce against him.

The Judge formed the clear view that there was a single binding contract between the parties as there was no doubt that HLB’s tender was an offer capable of acceptance. The offer was expected to remain open for acceptance for two months. Durham’s email accepting the offer was a counter-offer capable of acceptance. The meeting held between the parties subsequently minuted was that HLB were being asked to proceed and was agreeing to proceed. The Judge was of the view that what was said and minuted and, if necessary, HLB’s conduct in proceeding with the work thereafter amounted to acceptance of the counter-offer. The site investigation issues were part of the contract subsequent to the meeting, minor terms were agreed but were recorded in correspondence.

The Judge was also of the view that the contract was for the whole project rather than separate contracts for each part. The question of funding was, properly analysed, a condition subsequent. That is, HLB was appointed as lead consultant for the whole project but in relation to parts three and four, only if, and when, funding was secured. The Judge found that acceptance of the contract did not need to be recorded in writing and there was no requirement to the Act that it must be. What must be in evidenced in writing are all the terms of the contract. Similarly, where the parties underlying agreement, containing conditions subsequent, is evidenced in writing for the purposes of the Act, there was no need for the purposes of that Act that the occurrence of the conditions subsequent must be evidenced in writing. That was because those conditions were evidenced in writing in the underlying contract. Accordingly, the Adjudicator had jurisdiction to decide the dispute between the parties and the contract was one contract whose terms were fully evidenced in writing.

In relation to the identity, there was no doubt that HLB Architects was a firm that Mr Kendall was the sole proprietor in other terms he was HLB Architects. Therefore in law, HLB Architects was in effect Mr Kendall.