Establishing the scope and nature of a contract is fundamental to the services provided by the team at Tudor Rose. This year alone we have had a number of disputes over the payment terms in a contract, whether the main contract terms have been adequately stepped down, and in some cases, whether a contract exists at all. In this article, Natalie Warren examines a recent case in which the use of instant messaging (WhatsApp in this case) led to the formation of a contract.
The recent decision in the case of Jaevee Homes v Fincham[1] shows that it is far easier to form a binding contract than might be expected, and the court might consider evidence of agreement from non-conventional sources. In a reminder of the importance of contract formation along with the possibilities of instant messages, WhatsApp messages will suffice to constitute a binding contract.
The Facts
Fincham referred a smash and grab adjudication in respect of four invoices for which no pay less notice had been issued. On 11 September 2024, the adjudicator decided that Jaevee must pay the sum of £145,896.31 (the outstanding sum of £125,650.38 plus interest of £19,875.93 and late payment fixed compensation of £370).
On 20 September 2024, Fincham commenced proceedings to enforce the decision, which culminated in a hearing in the TCC on 9 December 2024 where the adjudicator’s decision was duly enforced, but with an order that Jaevee was entitled to set-off the £18,000 of costs[2], with a balance payable of £137,472.12 Jaevee was ordered to pay the defendant’s costs of £22,971.20.
On 16 December 2024, Jaevee issued its Part 8 claim, seeking declaratory relief that it was not in fact liable for the sums in the adjudicator’s decision and that the submitted invoices were not valid applications for payment.
The Contract & WhatsApp
Jaevee approached Mr Fincham to undertake the demolition works at the former Mercy nightclub, Norwich in early 2023. Mr Fincham attended site on 28 April 2023 to discuss the works. Further emails providing details of the work scope and requesting a quotation were exchanged over the following few days culminating with a written quotation for £256,000.00 + VAT being issued by Mr Fincham on 11 May 2023. The following day, Mr Fincham exchanged emails and Whatsapp messages with Mr James (CEO of Jaevee) regarding the quotation and negotiating the price, but no agreement was reached.
Between 13-16 May 2023, the exchange of WhatsApp messages continued as to whether Mr Fincham would be awarded the job. Mr Fincham proposed a reduced price of £248,000. In response, Mr James indicated that he was waiting on one other tender.
Crucially, on 17 May 2023, Messrs Fincham and James had another written exchange by WhatsApp as follows:
“[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?
[17/05/2023, 16:55:06] 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…”
On 26 May 2023, Mr Gokool, senior quantity surveyor of Jaevee, emailed Mr Fincham attaching (i) a purchase order; (ii) a short form subcontract and (iii) a marked-up ground floor plan of the works. The short form contract included a monthly payment regime.
Invoices
On 9 June 2023, Steve Fincham issued Invoice 1078 in the sum of £48,000 plus VAT by email.
On 16 June 2023, Jaevee made a payment of £10,000.
14 days after the first invoice, on 23 June 2023, Steve Fincham issued Invoice 1079, in the sum of £100,000 plus VAT by email.
Later that same day, 23 June 2023, Mr Ball, quantity surveyor at Jaevee, emailed Mr Fincham. The subject of the email was “Application 1”. The email provided a payment schedule and asked for “application 1…to be received by the 29th June”
On 24 June 2023, there is a further WhatsApp exchange between Mr James and Mr Fincham as follows:
“[24/06/2023, 12:59:07] Ben James: Why did you submit application no. 2? You’re not sticking to the subcontract that’s in place
[24/06/2023, 13:06:18] Steve Fincham: Well I know I have to wait 30 days now mate or what ever it is and I’ve finished all inside sections and Wednesday we need to get in the back carpark mate So will you please pay me something mate
[24/06/2023, 13:09:14] Ben James: This is the payment application and payment due dates to work from
[24/06/2023, 14:03:52] Steve Fincham: Will you just answer your phone mate
[24/06/2023, 14:46:26] Steve Fincham: Can you put 5,000 or 10,000 across to help me mate
[24/06/2023, 16:38:08] Steve Fincham: Ben I keep saying I started on the Tuesday 16th
[24/06/2023, 18:04:11] Steve Fincham: Ben I do apologies mate now gone through all my dates and yes Ben I did start on the 30th so sorry But can you please pay me some money mate Steve
[25/06/2023, 11:19:09] Steve Fincham: Ben Can you pay me something today now mate please
[26/06/2023, 06:37:42] Ben James: Will call in an hour
[26/06/2023, 11:19:27] Steve Fincham: Ben Come on push the button mate can’t organise anything till you push the button
[26/06/2023, 15:11:38] Ben James: Remember I’m doing you a favour”
Later that day, Jaevee made a further payment, in the sum of £10,000.
On 14 July 2023, Steve Fincham submitted Invoice 1081, in the sum of £38,750 plus VAT by hand. This was the third invoice within the space of 35 days.
On 27 July 2023, Steve Fincham submitted a further invoice, Invoice 1083, in the sum of £9,107.50 plus VAT by hand.
Jaevee made three further payments, as follows:
(1) £10,000, paid on 21 August 2023;
(2) £10,000, paid on 29 September 2023;
(3) £40,000, paid on 27 October 2023.
On 1 September 2023, Mike Ball of Jaevee produced a valuation which valued Fincham’s works in the full sum of £195,857.50 claimed.
On 8 December 2023, Jaevee issued a final account stating the total value of Steve Fincham ’s works was £107,125 excluding VAT (£112,481.25 inclusive of VAT) before deduction of amounts already paid.
No further sums were paid to Mr Fincham.
The Parties then fell into dispute regarding the amount of work that had been executed by Mr Fincham and the sums due. By letters on 30 November 2023 and 19 December 2024, Jaevee terminated Mr Fincham ’s contract.
The total sum invoiced by the defendant was £195,857.50 plus VAT. The total sum paid by Jaevee was £80,000
In the Adjudication, Jaevee argued that the contract was the documents issued on 26 May 2023 which were accepted by the defendant commencing the works on 30 May 2023. Jaevee’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.
Mr Fincham’s position was that the contract was agreed by an 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.
Adjudicator’s decision
The Adjudicator concluded the WhatsApp messages concluded the contract and the short form of subcontract was not applicable. The WhatsApp messages evidence the fact that the contract was formed on 17 May 2023 as a result of the agreement between Messrs Fincham and James. These messages confirm that an agreed sum for the contract was £248,000 + VAT. That was based on Fincham’s quotation dated 11 May 2024, in the sum of £256,000.00 + VAT which had then been lowered to £248,000.00 + VAT.
The WhatsApp messages also confirm that the parties agreed that invoices to be paid within 28 or 30 days. Therefore, the submission of invoices was the agreed process with the final date for payment being 28 or 30 days.
The TCC agreed; “the exchange of WhatsApp messages, whilst informal, evidenced and constituted a concluded contract.”(paragraph 81).
The judge considered that Mr Fincham was free to submit an invoice (as the application) at any stage of the monthly payment cycle and those invoiced sums became due 30 days after the invoice.
The Judge further considered that, “all four invoices set out sufficiently the basis for the amount claimed“ and further “which satisfy section 110B(4) in circumstances where Jaevee, the payer, failed to issue a payment notice. They are payee’s notices in default”
Key Takeaways
- Discussing contract details by WhatsApp (or any other form of electronic communications) may actually be entering a contract – proceed with caution!
- Remember the basics of contract formation: the need for offer and acceptance, consideration, mutual intention to create legal relations and certainty of terms.
- A binding contract can be formed by a very short exchange of a small amount of information.
- Incomplete information does not necessarily stop a contract being formed.
- Supplementing or formalising terms later will not necessarily amend or override an earlier agreement.
- Invoices can constitute a valid payment application; do not assume they are invalid.
- This case further demonstrates that the TCC will always seek to enforce an adjudicator’s decision.
Should you have any concerns or questions around what is or isn’t a contract or the use of social networks for communication on site, get in touch with Natalie Warren or one of the team today.
[1] Jaevee Homes Ltd v Fincham (t/a Fincham Demolition) [2025] EWHC 942 (TCC)
[2] Arising from Fincham’s issue of a statutory demand which Jaevee obtained an injunction to resist
