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You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> Hatmet Ltd v Herbert (t/a LMS Lift Consultants) [2005] EWHC 3529 (TCC) (18 November 2005) URL: https://www.bailii.org/ew/cases/EWHC/TCC/2005/3529.html Cite as: [2005] EWHC 3529 (TCC), 115 Con LR 95 |
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QUEEN'S BENCH DIVISION
TECHNOLOGY AND COMMERCIAL COURT
Strand London WC2A 2LL |
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B e f o r e :
____________________
HATMET LIMITED |
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| (CLAIMANT) | ||
- v- | ||
HERBERT (T/A LMS LIFT CONSULTANTS) | ||
| (DEFENDANT) |
____________________
Tape
transcript of Wordwave Limited
PO Box 1336 Kingston-Upon-Thames Surrey KT1 1QT
Tel No: 020 8974 7300 Fax No: 020 8974 7301
(Official Shorthand Writers to the Court)
MISS GILLIES appeared on behalf of the DEFENDANT
____________________
VERSION
OF JUDGMENT
Crown Copyright ©
VAT
and interest and that
LMS
should meet the costs.
LMS,
the defendant, refused to pay. The claimant issued proceedings. A defence has been served and directions have been postponed pending the outcome of this application.
Herbert,
the proprietor of the defendant, two statements by Mr Borner, who was the project manager for the claimant at material times. I bear in mind, of course, that none of this evidence has been tested in cross-examination. I thank Miss Gillies, for the defendant, and Mr Lee, for the claimant, who have provided
very
helpful written skeletons and made extremely helpful oral submissions.
lifts
in the building. Mr
Herbert
says in his statement that, throughout 2003 he was concerned with the installation of
lifts.
At the end of 2003, the design of the ceilings for the
lifts
came under discussion and the claimant, at Bouygues' instruction apparently, created a mock-up of a ceiling for the
lifts.
It was thought that it would be desirable if the ceilings in the
lifts
were similar to those in the building generally. Mr
Herbert
in his statement says that in about March or early April 2004 Bouygues told him that it had been decided to install ceilings in the
lift
along the lines of the mock-up and Mr
Herbert
therefore spoke to the claimant about proceeding with this.
Herbert
for the defendant and Mr Borner for the claimant. Mr
Herbert
asked the claimant to provide a quotation for ceilings to the 18
lift
cars. Mr
Herbert
said that as the claimant had made a mock-up there was no need for discussion of any technical issues. Mr
Herbert
and Mr Borner agreed that Mr Borner had quoted a price of £1,005 per car, a total of just over £18,000 for the 18
lifts.
Mr
Herbert
says in his statement that he told Mr Borner that he would have to revert to Bouygues for approval to place the order. He goes on to say that, after the meeting, he contacted Mr Penny of Bouygues, who in turn had to go back up the line to obtain approval, and some days later Bouygues told Mr
Herbert
that the claimant's price was acceptable.
"Supply and fit ceilings tolift
cabins as per your quote. (1) Eighteen
lifts
in total. (2) Delivery in six weeks. (3) Price: £1,005 per
lift."
[Judge's note: unable to check the wording]
lift
cars would be ready for installation of the ceilings beginning 27 September 2004 and ongoing in the
various
blocks within the building. An e-mail dated 24 September from Bouygues refers to comments from the project architect on the revised drawings for the work. By a letter dated 28 September 2004 the claimant wrote to defendant:
"Further to our initial meeting and yourverbal
request for the claimant to quote for the supply and installation of (inaudible) acoustic ceiling panels for the 18
lift
cars and your subsequent purchase order [and reference is made there to the April 2004 purchase order], the price of £1,005 per
lift
car was as your
verbal
instructions and sketched by myself at the meeting. [Then he goes on to make brief reference to what that sketch showed.] From
various
meetings this appears to be contrary to what the architect is expecting. Bouygues have requested that we revert back to the architect's original drawings [and the numbers are quoted which show nine panels with stainless steel edges, and so on]. The additional cost to revert back to the architect's drawings will be forwarded to you when known ... We respectfully request an instruction on how you wish us to proceed with the changes." [Judge's note: unable to check the wording]
"MrHerbert
will have a copy of the sketch as I sent him a copy after our meeting to confirm the work that we had agreed to carry out for the price of £1,005 per
lift
car." [Judge's note: unable to check the wording]
Herbert
dispute what was said in that letter about the existence of a sketch, but there is no reference to that being challenged in Mr
Herbert's
statement. The claimant sent the defendant a fax dated 4 October. It refers to the claimant's letter of 28 September and says:
"Further to that letter, we send attached copy of approved drawing issued to us by Bouygues today. Could you please forward your comments as soon as possible, instructing us on how you wish us to proceed. We again remind you that our order is with you and we will onlytake
instruction from yourselves." [Judge's note: unable to check the wording]
"Please proceed urgently with the manufacturing oflift
ceilings incorporating architect's comments. We have no further comments." [Judge's note: unable to check the wording]
lift
ceilings apparently began in mid to late October 2004. By letter dated 17 November 2004 Mr Borner wrote to the defendant saying this:
"As you were aware, the specification of the ceiling panels to thelift
cars has changed from our earlier discussions. [Then he sets out briefly what he says the requirement is now.] Our original price as stated on your purchase order was £1,005 per
lift
car. Our revised price is £1,318.20 per
lift
car. We request your written approval of the following: (a) the mock-up installed in the scenic
lift
and (b) our revised price of £1,318.20. We have procured the materials and therefore request a deposit of 50 per cent of the overall contract
value
to enable us to proceed further with the installation." [Judge's note: unable to check the wording]
lift
or to the proposal for a revised price of £1,300-odd, nor was any deposit of 50 per cent paid. On 23 December 2004 the claimant sent the defendant an invoice for the ceilings, claiming the revised price of £1,318.20 per
lift
for 18
lifts.
On 14 February 2005 the defendant wrote to the claimant saying:
"Regarding your invoice, Bouygues will not agree to the increased costs unless they have documented evidence of the changed design from the original order." [Judge's note: unable to check the wording]
"The cost of installing the steel ropes that you refer to will be most certainly not accepted by ourselves as there is no design or contractual requirement for us to design or incorporate these components into the supply and fix installation." [Judge's note: unable to check the wording]
"(b) If the agreement is made by exchange of communications in writing, or (c) if the agreement is evidenced in writing."
taken
to the decision of the Court of Appeal in RJT
v
DM Engineering [2002] BLR at page 217 and to the decision of His Honour Judge Bowsher QC in Carillion Construction Limited
v
Devonport Royal Dockyard [2003] BLR at page 79 and I have been reminded of a judgment which I gave in a case called Lloyds Project Limited
v
Marlnick, an unreported judgment dated July 2005.
Herbert's
own evidence contradicts that, as I have outlined. He says that he had to go back to Bouygues to check that they were happy with the price that was proposed.
vital
in this context. It formed the basis of the discussions as to what was to be done and at what price. All of those matters are missing from the written records upon which the claimant seeks to rely. In relation to the mock-up I should just add that it may be that there is more than one mock-up but that is not material to this decision. The claimant's case is that a contract was made by exchange of communications in writing, as section 107.2(b) provides, alternatively, that the documents evidence a construction contract within the meaning of 107.2(c).
varied
work as set out in the approved drawing? Mr
Herbert,
for the defendant, gave as clear an answer as one could expect to see in his e-mail of 4 October. He said:
"Please proceed urgently with the manufacturing of the ceilings incorporating the architect's comments." [Judge's note: unable to check the wording]
viewing
the question of the increase in price. One possibility is for the court to conclude that the defendant accepted that it would proceed on the basis of the revised price which the claimant envisaged would be set, as can be seen in the 17 November letter. In my judgment, that would not arrive at a position where there was sufficient certainty between the parties as to what was to be paid or how that matter was to be resolved.
very
least such as to evidence the agreement in writing, as section 107.2(c) requires.
Herbert or Mr Borner that terms were discussed or agreed between them orally which were not recorded in writing and that, of course, is one of the essential differences between this case and the RJT case. The Marlnick decision does not assist me here. In that case it was said that there were many significant matters which the parties had agreed orally but which had not been reduced to writing; that is not the case here.