Using WhatsApp to negotiate the terms of a ‘construction contract’

“… Are we saying it’s my job mate?”, is a question posed in the case below, and one that no doubt every contractor will ponder after allocating a considerable amount of time and resources to preparing and submitting a competitive tender to secure work on a new construction project.

For some projects, a contractor may wait until it receives formal confirmation from the employer that it has successfully secured the job, before commencing negotiations to agree formal terms. It is also possible that the employer will just agree to instruct a contractor based on the contractor’s standard terms, either because those terms are uncontroversial, or they are doing so without the benefit of legal advice.

On other projects, the path to an agreement is not always as straightforward or clear-cut. A contractor may start negotiations with the employer immediately after submitting its tender. The objective of these discussions is to improve the contractor’s prospects of winning the tender and securing the job.

We often see disputes where parties disagree on which set of terms were incorporated into a professional services appointment or building contract. This requires a ‘battle of the forms’ analysis, in which, as a general rule, it is necessary to identify which party fired the last ‘shot’ so to speak. In other words, which terms were the last to be referenced before the contract was agreed.

The case      

This article considers the Technology and Construction Court’s decision in Jaevee Homes Limited v Mr Steve Fincham (trading as Fincham Demolition) [2025] EWHC 942, in which the parties had been in dispute about which payment terms applied to their project.

The case considers a ‘battle of the forms’ issue which arises from the use of very informal messages over WhatsApp to enter into a legally binding agreement, and how the Housing Grants, Construction and Regeneration Act 1996 (the “1996 Act”) will plug any gaps created by those communications where the contract is for ‘construction operations’.

Background

The dispute was between a property developer (the “claimant”) and a demolition contractor (the “defendant”) in relation to the demolition of a former night club in Norwich (the “works”).

In early 2023, the claimant approached the defendant to undertake the demolition work on the site. The defendant visited the site at the end of April 2023 and subsequently provided a written quote via email on 11 May 2023.

After submitting the quotation, the parties engaged in a series of exchanges by email and WhatsApp to discuss the timescales for the project, pricing, and payment terms. The defendant proposed that payment should be made by the employer within 30 days of an invoice being issued (the “WhatsApp Terms”). No definitive agreement was reached by the parties at this stage.

On 17 May 2023, the defendant reached out to the claimant via WhatsApp and asked for confirmation of whether they had won the job. The claimant responded with ‘Yes’.

On 26 May 2023, the claimant sent an email to the defendant attaching a purchase order and a Short Form Sub-contract, which provided that the first payment application was to be made on an Interim Valuation Date, with subsequent payment applications to be made each calendar month (the “Formal Subcontract Terms”). The defendant did not acknowledge or confirm its agreement to the Formal Subcontract Terms.

Works commenced on 30 May 2023, and the defendant proceeded to submit invoices in accordance with the WhatsApp Terms. The claimant took issue with this and disputed the validity of the defendant’s payment applications due to a failure to follow the payment provisions set out in the Formal Subcontract Terms.

Which terms were incorporated?

The Court found that the following WhatsApp messages had concluded in a binding contract between the parties:

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

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

The Formal Subcontract Terms, which were emailed to the defendant after these exchanges, had no legal effect. As for the specific arguments raised by the claimant to suggest that the informal messages did not conclude an agreement:

• There was no agreement as to which party the Defendant was entering into a contract with – the court found that it was clear from all of the exchanges that the intention was for the Defendant to carry out the works.
• There was no agreement as to the duration of the works – the court held there was an agreement as to when the works would commence based on the exchanges that had been put before the Court. In any event, it is not essential for parties to agree a duration of the works in order to conclude a legally binding agreement. There would be an implied term that the works would need to be carried out within a reasonable time.
• No start date for the works – the court held there was enough detail in the messages exchanged to ascertain a start date. Even if the claimant was correct and no start date was agreed, a start date is not an “essential term of the contract”.
• No payment terms agreed – the court held the parties had agreed (via WhatsApp) that payment would be made within 30 days of the contractor submitting an invoice. In other words, this was an agreement as to the Final Date for Payment. If the payment terms in the messages were insufficient or contained gaps, as was the case here, the 1996 Act would imply appropriate payment terms into the parties’ agreement to the extent necessary.

Commentary

The decision is a timely reminder to all involved in the construction industry, including contractors, consultants and their insurers, that it is possible to create legally binding agreements through informal exchanges of text messages. In this case, the parties agreed the terms of a building contract over WhatsApp.

The key takeaways to consider include:

• It is worth clarifying when something is agreed “subject to contract” or “subject to a formal agreement being signed”.
• If there is any disagreement between the parties on which terms apply or what is the correct interpretation of those terms, it is important to seek legal advice at the earliest opportunity. If these issues are not addressed early in the project, the scale of the problem may escalate as one party, or indeed both parties, fail to act in accordance with the agreed contract.
• If a dispute arises on a project, any WhatsApp or mobile communications pertaining to a particular project may need to be disclosed as part of the proceedings, so continue to keep documentary records.

If you need help with contractual formation or interpretation issues, please contact the authors of this article.