Robertson engaged Irvin as the M&E subcontractor on the design and construction of a new psychiatric hospital. Robertson had to seek approval from its parent company before entering into the M&E subcontract as it exceeded certain financial limits.

Robertson issued a tender package for the subcontract, based on the subcontract being supply and install. At this stage, Irvin was the more expensive tenderer. Robertson entered into discussions with both tenderers with the intention that the successful tenderer would assume full design responsibility of the subcontract works, and take a novation of the design consultant.

Robertson held two meetings with Irvin, the first meeting concluded without agreement because, not least, Robertson had no personnel present with authority to enter into a contract. At the second meeting, it was agreed that Irvin would assume full design responsibility for the subcontract works and accept the novation of the design consultant, for an additional sum of money. Subsequently, Robertson emailed Irvin with the main points of agreement from the meetings, which amounted to an offer to Irvin to enter into a contract for full design responsibility. Irvin responded with its interpretation of the points agreed at the meeting, which were substantially the same, subject to a qualification to the acceptance of design responsibility.

Contract negotiations stalled following these emails, yet Irvin commenced work on site without any formal agreement in place. Subsequent disputes arose between the parties which Irvin sought to refer to adjudication. Irvin commenced Part 8 proceedings for a declaration as to whether a contract in writing in accordance with s107 had been entered into by the parties. Irvin submitted that a supply and installation subcontract had been agreed, with the option to assume full design responsibility after due diligence of the design by Irvin.

The Judge decided that the parties had not entered into a contract in writing in accordance with s107, for either a supply and install subcontract with the option to full design responsibility, or a full design and build subcontract. The Judge considered written and oral evidence from the parties on what had been agreed at the meetings, and the emails that followed. The Judge decided that Irvin was well aware that Robertson needed express agreement from its parent company to enter into anything other than a full design and build contract, which was not given. Further, the price, and whether it was a guaranteed maximum price, had not been agreed. There were other, less fundamental terms that were also not agreed. Irvin had also submitted that the parties had a freestanding right to adjudicate, as there was an adjudication provision included in Robertson’s tender pack. The Judge dismissed this without merit.