TXT 1800 BUILD? Court finds that exchange of WhatsApp text messages constituted a valid subcontract for works

• 7 May 2025
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Jaevee Homes Limited v Mr Steve Fincham (trading as Fincham Demolition) [2025] EWHC 942 (TCC) (here)

In a recent judgment, the Technology and Construction Court determined that a valid contract for works had been concluded following the exchange of a series of WhatsApp messages and that three out of four invoices issued by the defendant constituted valid applications for payments under the Housing Grants, Construction and Regeneration Act 1996 and the Scheme for Construction Contracts. 

These proceedings arose following an adjudication in which Fincham Demolition (the “Contractor”) had sought payment in full from Jaevee Homes Limited (the “Developer”) for a number of outstanding invoices relating to demolition works at a site in Norwich. Although the adjudicator in that adjudication had decided in favour of the Contractor, and the Contractor had successfully sought an enforcement order against the Developer for payment, the Developer issued a Part 8 claim seeking declaratory relief in respect of two issues: 

1. Whether the parties had entered into a valid subcontract for works and, if so, on what terms; and 
2. Whether invoices issued by the Contractor had been valid applications for payment.  

In considering the first part of the claim, the Court scrutinised a series of messages exchanged between the parties over WhatsApp in which, following a series of questions posed by the Contractor, the Developer confirmed that the Contractor “had the job”, could start the next Monday and that payment would be made following the issue of “monthly applications” by the contractor. Following this exchange, and after scaffolders had commenced work on the site, the claimant sent Mr Fincham a standard form sub-contract to fill out, which Mr Fincham never acknowledged. 

The Court dismissed the first part of the claim for relief as, although done on a somewhat informal basis, the Court held that the parties had indeed entered into a valid contract for the following reasons: 

1. The parties intended that the works should be started as soon as possible and that the parties had agreed the Contractor would come to site;
2. The scope of the works had been agreed;
3. A price had been agreed; and 
4. There was no express indication that the final terms of the agreement between the parties depended upon agreement as to any other matter such as incorporation of the developer’s standard terms of contract. 

The Court held that the essential terms (including the scope of works and the price) had been agreed and that any other terms were not essential or could be implied by reference to the Housing Grants, Construction and Regeneration Act 1996 and the Scheme for Construction Contracts. The Court held that the absence of terms relating to, for example, the duration of the contract works, the start date and payment terms would also not preclude a valid contract from being concluded. 

In relation to the second part of the claim, the Court held that three out of four invoices issued by the contractor were valid applications for payment. The parties had agreed that the Contractor was entitled to submit one application for payment a month but the Contractor had issued two of the invoices in the same month, and therefore only one of those invoices was held to be valid.