Does statutory adjudication apply to an oral or partly written construction contract?
For construction contracts within the amended legislation in England and Wales, statutory adjudication is no longer confined to contracts made or evidenced in writing. Oral and partly written agreements can qualify, although proving their terms may be difficult.
Yes for contracts governed by the post-1 October 2011 regime, subject to statutory scope and proof of the agreement
Section 139 of the 2009 Act repealed section 107 of the 1996 Act. In England and Wales, the change applies to construction contracts entered into on or after 1 October 2011. The adjudication provisions themselves must meet the statutory written requirements; otherwise the Scheme supplies the procedure. The adjudicator may decide disputes about whether a contract exists and what its terms are, using documents, witness evidence and conduct. Historic contracts require the former writing rules to be checked.
| Issue | Position |
|---|---|
| Contract from 1 October 2011 | Oral or partly written agreement may qualify |
| Earlier contract | Historic section 107 rules may apply |
| Adjudication procedure deficient | Scheme provisions may be imported |
| Oral terms disputed | Evidence and witness credibility become central |
| Statutory scope | Contract and operations must still qualify |
Current position in England and Wales
The statutory right is not lost merely because the construction contract was made orally or contains oral terms. The party relying on adjudication must still establish a qualifying construction contract, a crystallised dispute and compliance with the applicable procedure.
The statutory amendment
Section 139 of the 2009 Act repealed section 107 of the 1996 Act. The amended regime applies in England and Wales to contracts entered into on or after 1 October 2011. The full statutory titles and official text are given in the authorities table.
What still needs writing
The contract's adjudication procedure must include the required provisions in writing. Where it does not, the relevant Scheme procedure applies. Repeal of section 107 did not remove every written procedural requirement.
A statutory right to adjudicate does not cure uncertainty over scope, price, programme, notices or payment terms. Record the bargain promptly.
Historic contracts
| Situation | Required analysis |
|---|---|
| Before the amendment applies | Check former section 107 and the governing commencement provisions. |
| Wholly written agreement | Historic statutory jurisdiction may be established. |
| Partly oral agreement | Former law may exclude statutory adjudication if material terms were not evidenced as required. |
| Implied price term | Historic outcome depends on the recorded agreement and applicable authority. |
| Later oral variation | Check the contract date and former jurisdictional rules separately. |
RJT Consulting Engineers
The Court of Appeal took a strict approach: for the former section 107 the agreement itself, rather than merely evidence that some contract existed, had to be recorded in writing.
Carillion and Rok
A distinction was drawn between a written price mechanism or implied reasonable-price term and an agreed oral price whose details were not recorded. That former section 107 analysis does not govern a post-amendment contract.
Proving an oral agreement
| Evidence | Purpose |
|---|---|
| Witness evidence | Who agreed what, when, where and with what authority. |
| Contemporaneous documents | Quotations, messages, minutes, invoices and instructions. |
| Performance | Work undertaken and accepted in accordance with alleged terms. |
| Payments | Rates, descriptions and payment conduct. |
| Subsequent statements | Admissions or disputes about the bargain. |
| Implied terms | Terms supplied by law only where the legal test is met. |
Adjudicator's procedure
The adjudicator can seek witness statements, contemporaneous records, focused submissions and, where fairness requires, oral evidence or a meeting. The timetable remains short, so the parties should isolate the disputed term and its evidential basis early.
Existence and terms are jurisdictionally important
A party may dispute that any contract was concluded, that the responding entity was a party or that the work fell within the alleged agreement. The adjudicator must address those threshold issues while observing any properly reserved jurisdictional objection.
Record formation after the event
Preserve quotations, purchase orders, emails, messaging records, meeting minutes, invoices, payment history, site instructions and evidence of performance. Do not create retrospective documents that purport to be contemporaneous.
Pre-referral sequence
Identify the contract date and governing territorial regime.
Establish the parties, work, consideration and intention to contract.
Separate written, oral and implied terms.
Check statutory construction-contract and operation requirements.
Identify the adjudication procedure or imported Scheme terms.
Prepare witness and contemporaneous evidence of disputed terms.
Crystallise the contractual dispute.
Reserve and address any jurisdictional objection precisely.
Authorities
| Authority | Year or status | What it decides |
|---|---|---|
| RJT Consulting Engineers Ltd v DM Engineering (Northern Ireland) Ltd | [2002] EWCA Civ 270 | The former section 107 strictly required the agreement to be evidenced in writing. |
| Carillion Construction Ltd v Devonport Royal Dockyard | 2003 | The former writing requirement was applied to material contractual terms. |
| Rok Building Ltd v Bestwood Carpentry Ltd | [2010] EWHC 1409 (TCC) | This was the treatment of an unrecorded agreed price under the former provision. |
| Local Democracy, Economic Development and Construction Act 2009, section 139 | Current statute | Repealed the former section 107 writing restriction. |