“Are we saying it’s my job mate?”: TCC holds that a construction contract was formed via Whatsapp messages

The recent decision in Jaevee Homes Limited v Fincham (t/a Fincham Demolition) [2025] EWHC 942 (TCC) provides useful guidance regarding the formation of contract and the operation of the Scheme for Construction Contracts in the context of informal negotiations between construction companies.

Factual Background

After a visit to the site, Mr Fincham provided a quotation for undertaking demolition works at a former nightclub. After a reduction to the price was agreed, the CEO of Jaevee Homes sent a WhatsApp message to Mr Fincham confirming that he was to undertake the works.

In the following days, Jaevee Homes Limited prepared and issued a purchase order and subcontract terms and conditions. These documents were not acknowledged or accepted by Mr Fincham.

Shortly after the works commenced, a dispute arose regarding various invoices issued by Mr Fincham. Jaevee Homes Limited argued that all interim applications for payment required to be (a) sent to the email address noted in the subcontract and (b) issued on the interim valuation dates listed in the subcontract.

When this dispute was referred to adjudication, the Adjudicator determined that:

• the contract was formed as a result of the WhatsApp messages exchanged between Mr Fincham and the CEO of Jaevee Homes;
• this contract was based on the initial quotation and the subsequent agreement to reduce the price;
• the subcontract issued by Jaevee Homes was of no legal significance; and
• as per the Whatsapp messages, Mr Fincham’s invoices required to be paid within 28 or 30 days.

The Adjudicator awarded Mr Fincham c.£125,000 plus interest and compensation for late payment.

This decision was challenged by Jaevee Homes and in Part 8 proceedings the TCC was asked to determine:

• whether there was a contract between the parties;
• what the terms of that contract were; and
• if the invoices issued by Mr Fincham constituted valid applications for payment.

Formation of contract

Mr Roger Ter Haar KC concluded that “the exchange of WhatsApp messages, whilst informal, evidenced and constituted a concluded contract”. He stated that the contract was concluded once the position regarding payment was clarified (as discussed further below) and that the subcontract terms, which were issued after this date and were not agreed, were not incorporated in the contract.

In reaching this decision, the judge rejected Jaevee Homes’ argument that a contract could not have been formed as there was no agreement regarding the duration of the works; the start date; or the applicable payment terms. He held that agreement on each of those matters was not essential to the formation of a contract and, in any event, terms would be implied into the contract as regards the duration of the works and the payment mechanism (if the contract was silent on those matters).

Applicable payment terms

Mr Roger Ter Haar KC stated that, in the absence of any agreement as to how monthly interim payments were to be calculated, “the Scheme steps in to fill the gap”, but “does not displace the other matters agreed between the parties”.

Mr Roger Ter Haar KC reviewed the following WhatsApp messages exchanged between Mr Fincham and Mr James, the CEO of Jaevee Homes, on 17 May 2023 in order to ascertain what had been agreed:

Mr Fincham: Ben Are we saying it’s my job mate so I can start getting organised mate”

Mr James: Yes

Mr James: Monthly applications

Mr Fincham: Are you saying every 28 or 30 days from invoice that’s a yes not on draw downs then good…call you at 8.30 mate Thanks mate appreciated Ben

Mr James: Ok

Mr James: Chat in the am

While on previous projects Jaevee Homes had operated on a pay when paid basis, Mr Roger Ter Haar KC considered that this exchange made clear that Mr Fincham was entitled to submit an application for payment “at any stage during each monthly cycle” and that the sums due under the contract became due “at latest 30 days after the invoice”.

Mr Roger Ter Haar KC accepted that the phrase “monthly applications” must be given its plain and ordinary meaning and therefore Mr Fincham was “free to make one, but only one, application for payment each month”.

Validity of the interim applications for payment

Given that the subcontract terms and conditions issued on 26 May 2023 were deemed not to be incorporated in the contract, the only arguments advanced by Jaevee Homes in relation to the validity of the interim applications for payment were that:

• the invoices did not identify the basis on which the sum due had been calculated;
• Mr Fincham did not have the requisite intention to issue an application for payment when issuing the invoices; and
• if Mr Fincham was limited to one application each month, only three of the invoices could be valid.

Mr Roger Ter Haar KC held that the four invoices, which detailed the completed works and referred to the quotation or a subsequent agreement regarding extras, “set out sufficiently the basis for the amount claimed”.

In respect of Mr Fincham’s intention when issuing the invoices, Mr Roger Ter Haar KC accepted the Defender’s arguments that:

• a reasonable recipient would have understood the invoices to be an interim application for payment where the invoices requested payment; invoices had previously been used on other projects as interim applications for payment and the discussions on Whatsapp referred to payment being made following submission of an invoice; and
• Jaevee Homes evidentially understood that invoices were application for payment, where it described them as such and did not raise any complaints that these were unclear or that further information was required at the time.

In light of his determination that Mr Fincham was limited to one application per month, Mr Roger Ter Haar KC did, however, accept Jaevee Homes’ argument that the third invoice was invalid, because that was the second invoice issued within a given month.

Conclusion

This decision demonstrates that:

• all discussions between the Parties, regardless of how informal they may be, should be considered in order to ascertain (a) when a construction contract was formed and (b) what the applicable terms are; and
• when considering the validity of an alleged interim application for payment, all the factual circumstances must be taken into account to determine how it would have been understood by a reasonable receipt and how it was in fact treated by the parties to the dispute.