During July 2001 Camden and Sprunt entered into a Framework Agreement under which Sprunt agreed to provide building consultancy services in its capacity as an architect. Under the terms of the Framework Agreement, Camden would issue instructions to Sprunt. Sprunt would reply with a fee proposal. If Camden decided to proceed, it would then issue a written order. The Framework Agreement provided for adjudication in accordance with the Scheme as amended by the agreement. The adjudication clause also provided for Camden to be the nominating body and for payment of the Adjudicator’s decision to be suspended in certain circumstances.

Camden placed 37 orders with Sprunt over the following 12 months. During 2003 Sprunt successfully tendered for two projects outside of the Framework Agreement, although the conditions of contract were virtually identical to the Framework Agreement. Issues arose on these projects and by letter dated 12 June 2006, Sprunt wrote to Leander offering to suggest a reduced fee in relation to its services for one of the projects. Thereafter the parties proceeded on the basis of this letter and the Framework Agreement. In 2011 disputes arose over Sprunt’s fee entitlement. Sprunt successfully referred the dispute to adjudication.

At enforcement, Camden argued (as it had done during the adjudication) that there was no contract in writing for s107 purposes. Camden also argued that, as the Adjudicator had been appointed by RICS, it was invalid. Sprunt argued that there was an effective agreement as recorded in its 12 June 2006 letter and, as the adjudicator appointment clause in the Framework Agreement offended s108, it was entitled to seek a nomination from an appropriate body such as RICS. The Judge found in Sprunt’s favour.

The contract was in writing as evidenced by the 12 June 2006 letter. It contained an offer capable of acceptance which Camden had accepted by conduct. Where the letter expressly incorporated the terms of the Framework Agreement the parties could be taken to have made an agreement in writing for the purposes of s017(3) of the Act as they had agreed otherwise than in writing by reference to terms which were in writing. The adjudication provision clearly offended s108: it was inherently unsound and contrary to the Act’s policy for the contract to specify that one side should nominate the Adjudicator. It also offended s108 by allowing the suspension of the Adjudicator’s award. If the provisions of the Contract were inconsistent with the Scheme then all the contractual provisions are replaced by the Scheme adjudication provisions in their entirety.