In the recent decision of Jaevee Homes Limited v Fincham [2025] EWHC 942 (TCC), the High Court has concluded that a binding contract (with a value of nearly a quarter of a million pounds) was formed by informal text messages exchanged over WhatsApp.

Background:

The dispute arises out of demolition works at the site that the Claimant was developing in Norwich. Jaevee Homes Limited (“the Claimant”) approached Fincham Demolition (“the Defendant”) to carry out demolition works at a nightclub in Norwich. After a site visit in April 2023, the parties exchanged emails discussing the work scope, duration, sequencing of the works, price and the provision of a quotation, however, no firm agreement was reached. On 17 May 2025, the conversation then moved to WhatsApp with the following exchange between Steve Fincham (of the Defendant) and Ben James (of the Claimant):

“[17/05/2023, 16:34:43] Steve Fincham: Hi Ben How did you get on mate is the job mine mate

[17/05/2023, 16:38:32] Ben James: Can you start on Monday?

Steve Fincham: I can start with getting the scaffolding sorted and stuff on Monday mate but men will start the following Monday Tom needs to get the scaffolders there on Monday too mate to alter the scaffolding with ladder beams above the door way and make gates into the hoarding to get the equipment in He will know what we are talking about mate Appreciate this work I really do Ben

[17/05/2023, 17:43:15] Steve Fincham: Ben Are we saying it’s my job mate so I can start getting organised mate

[17/05/2023, 20:06:42] Ben James: Yes

[17/05/2023, 20:06:51] Ben James: Monthly applications

[17/05/2023, 20:11:50] Steve Fincham: Are you saying every 28 or 30 days from invoice that’s a yes not on draw downs then good d) call you at 8.30 mate Thanks mate appreciated Ben

[17/05/2023, 20:12:12] Ben James: OK”

On 26 May 2023, the Defendant received a zip file of documents by email from the Claimant, which included a purchase order and sub-contract. The sub-contract named the contracting parties as the Claimant and the Defendant, stated that the contract sum was £248,000 plus VAT and made provision for a monthly interim payment regime. The Defendant never acknowledged or replied to the email either accepting or rejecting the sub-contract terms.

Shortly after commencing the demolition works on 30 May 2023, the Defendant issued four invoices for payment in quick succession (9 June, 23 June, 14 July and 27 July), totalling £195,857.50 plus VAT. The Claimant objected to the Defendant submitting invoices in such quick succession, however, it did make payments which totalled £80,000. The parties fell into dispute regarding the amount of work executed and sums due and the Claimant purported to terminate the sub-contract.

After serving a statutory demand, the Defendant commenced an adjudication seeking the outstanding sum of £125,650.38 as the notified sum on the basis that the four invoices were payable because no pay less notices had been served by the Claimant.

The Claimant argued that the contract comprised the documents it sent on 26 May 2023, which were accepted by the Defendant commencing the works. The Claimant’s alternative position was that if the contract was agreed by WhatsApp messages on 17 May 2023, then the agreement was one application to be issued each month.

The Defendant’s position was that the contract was agreed by the exchange of WhatsApp messages on 17 May 2023 and that the agreement was that it would be paid 28-30 days after issue of an invoice.

The adjudicator agreed with the Defendant, deciding that the 17 May 2023 WhatsApp messages constituted the contract and that the agreement was that the invoices would be paid 28-30 days after issue. Therefore, the adjudicator decided that the Defendant was entitled to the sum of £125,650.38 plus interest and late payment fixed compensation.

The Claimant refused to pay the sums which the adjudicator had decided were due and the Defendant successfully enforced the adjudicator’s decision. The Claimant still refused to pay and instead issued a Part 8 claim asserting that there was no basis for payment. It sought the following declarations:

  • The contract was the sub-contract sent on 26 May 2023
  • Alternatively, the contract was the exchange of written communications by email and WhatsApp between April 2023 and in or around 2 May 2023 which included a requirement that the Defendant issue applications for payment on a monthly basis.
  • In any event, regardless of the terms upon which the parties had contracted, the four invoices did not constitute valid “applications for payment” and/or “default payment notices” under the Housing Grants Construction and Regeneration Act 1996 (as amended) (“the Construction Act 1996”) and/or the Scheme for Construction Contracts Regulations 1998 (as amended) (“the Scheme”).

Judgment:

When was the contract formed?

The court held in favour of the Defendant, ruling that the exchange of communications by email and WhatsApp between April 2023 and 17 May 2023 “whilst informal, evidenced and constituted a concluded contract”. The Judge concluded that:

  • It was clear that the Defendant’s employer would be the Claimant;
  • Agreement as to the duration of works is not an essential element of a construction contract as there is an implied term that a contractor will complete within a reasonable period;
  • The start date had been agreed, and even if it had not, this was not an essential term of the contract as the parties intended the works should start as soon as possible; and
  • While certain aspects of the payment terms had been agreed and other aspects had not, even the total absence of payment terms is not fatal to the formation of a construction contract as the law implies the payment provisions of the Scheme if or to the extent that a construction contract does not provide
  • An adequate mechanism for determining what payments become due under the contract, and when; and
  • A final date for payment in relation to any sum which becomes due.

The court held that the following WhatsApp message exchange was evidence of a concluded agreement:

“[17/05/2023, 17:43:15] Steve Fincham: Ben Are we saying it’s my job mate so I can start getting organised mate

[17/05/2023, 20:06:42] Ben James: Yes”.

When were invoices due to be issued?

The court held that “the agreement was that the Defendant was free to make one, but only one, application for payment each month… there was however, no agreement as to when in the month such application could be made…”. Therefore, three of the four invoices issued were still valid as only one fell foul of the requirement that there be no more than one invoice issued in any monthly period. The Defendant would be paid 28 to 30 days following its payment application.

The court confirmed that because the WhatsApp messages made no provision as to how monthly instalments were to be calculated, the Scheme would step in on a piecemeal basis to calculate the monthly instalments to which the Defendant was entitled.

Were the invoices valid payment notices?

The court held that all four invoices were valid applications or claims for payment that satisfied section 110B(4) of the Construction Act 1996 in circumstances where the payer (the Claimant) failed to issue payment notices in default. However, as above, because the Defendant was only entitled to issue one payment application a month, only three of the four invoices were valid.

Conclusion

This case highlights the importance of taking care when carrying out contractual negotiations. It is a reminder that the tools we use in modern life to communicate (apps, emails etc) are also tools through which we can make binding agreements. The judgment clearly demonstrates that only a few elements need to be agreed to form a binding contract as the remainder of the terms can be readily supplied by common law and statute.

As expected, the judgment demonstrates that the statutory schemes can fill contractual gaps, however, parties should not be reliant on this as it will not always be in their favour. Therefore, always seek to agree a clear, well documented, formal signed contract early on.

If you have any questions regarding this article or require advice regarding a construction contract or dispute, please get in touch with our Construction Team.