Mr Malnick converted his former offices in Islington into three residential units. The claimant carried out the construction work. The oral agreement was reached on 3 September for the builder to carry out the conversion work. A manuscript note of the telephone conversation recorded the price at £412,000 inclusive of VAT with no extras. The work commenced on or around 12 September 2003. Shortly afterwards the parties agreed a variation of £10,000.

On 11 February 2004, the contractor wrote to Mr Malnick setting out his understanding of the terms of the contract. A response of 17 February 2004 identified that there were some differences in the understanding in terms of the quality of the work, the scope of the work (did the additional £10,000 relate solely to the chimney work, or did it cover the additional pointing and the drainage work), and whether the PC sum for the kitchen and bathroom fittings was a maximum prices that was not to be exceeded or whether the actual cost was to be paid to the builder.

Disputes arose in connection with these items and others. The dispute was referred to adjudication. The claimant sought to enforce the adjudicator’s decision.

The issue was whether the letters of 11 and 17 February 2004 were sufficient evidence in writing of the agreed terms pursuant to section 107(2)(b) or (c) of the Construction Act. The defendant argued that not all of the material terms had been recorded in the documents. Further, the letters were some five months after the work had started and demonstrated that the parties had a different understanding of the agreement.