Citation: [2026] EWHC 152 (TCC)
High Tech commenced an adjudication claiming the balance of £2,142,623.55 allegedly due for construction works undertaken at a site in North London pursuant to a JCT D&B Sub-contract. WLP's case was that there was no binding JCT based contract and that the suggestion this was the basis of the contractual arrangement between the parties was a sham and fradulent. The Adjudicator stated that he had not been presented with the evidence which would allow him to reach the conclusion that the alleged JCT based contract was fradulent and that he therefore saw no reason to resign as a result of WLP's challenge to his jurisdiction. The Adjudicator's Decision awarded High Tech the entire sum claimed with interest.
High Tech sought and obtained a without notice freezing injunction, which was subsequently upheld by Constable J [freezing injunction case]. It also sought to enforce the Decision.
By the date of the enforcement hearing on 13th January 2026, WLP had provided considerably more evidence to support its assertions. High Tech accepted that WLP's case that the alleged JCT based contract was fradulent stood a real prospect of success (in the context of the test for summary judgment). WLP had articulated a case based on a series of oral or What's App arrangements governing demolition and enabling works and a subsequent simple lump sum agreement in respect of the reinforced concrete frame. The scope of works on WLP's case was significantly less than that included in the allegedly binding JCT contract, a matter which was reflected in the significantly reduced contract sum.
As Constable J states at paragraph 34 of the enforcement judgment, this meant that WLP could potentially establish that the "foundational basis upon which not only the adjudication, but also therefore the freezing order and the resistance to this application for enforcement, has involved fradulent reliance by Mr Osman on a document he knows does not represent the true agreement between the parties".
High Tech argued that the debate about the contract or contracts under which the works were carried out was irrelevant to the Adjudicator's valid jurisdiction. The allegedly binding JCT contract incorporated the provisions of the Scheme and any contract relied on by WLP would also incorporate those provisions and so the appointment process would be the same. The fact that the terms and conditions differed was not material.
Constable J held that:
- The decision of May LJ in Pegram Shopfitters v Tally Weill (UK) Limited [2004] 1 WLR 2082 (CA) was binding. That identified twin difficulties. First the that different contractual routes may provide different procedural routes to establishing jurisdiction. And second that in commencing an adjudication on the basis of a foundational contract which it was reasonably arguable was wrong the claimant had failed to provide a "sufficiently secure identification of the contractual terms .... necessary to the proper performance of [the Adjudicator's] adjudication task".
- There will be clear cases where the contract formation debate goes to the heart of the jurisdiction of the adjudicator. If, for example, party A's foundational contract requires a different adjudication appointment or dispute resolution procedure from that contended for by party B, summary judgment should not be given if there is a reasonable prospect that party B's contention is correct.
- Where parties are agreed as to the existence of the foundational contract, but disagree as to whether all relevant work was undertaken pursuant to that contract (as varied) or different orders, the Adjudicator will have jurisdiction pursuant to the foundational contract to determine those other disputes, which are to be treated as part of the substantive debate rather than one which impacts jurisdiction. This follow the line of reasoning which commenced with Akenhead J's judgment in Air Design (Kent) Limited v Deerglen (Jersey) Limited [2008] EWHC 3047 (TCC).
- If however there is a fundamental dispute as to the very existence of the contractual arrangement pursuant to which the adjudicator has been appointed summary judgment is likely to be inappropriate if the defendant's argument has a real prospect of success. Cases falling on this side of the line include Viridis UK Limited v Mulalley and Company Limited [2014] EWHC 268 (TCC); Cubex (UK) Ltd v Balfour Beatty Group [2021] EWHC 3445 (TCC); and Twintec Ltd v Volkerfitzpaatrick Ltd [2014] EWHC 10 (TCC). This was stated to "give meaning to the second of the twin difficulties which faced the Claimant in Pegram" at [72(5)].
- The present case fell on the "existential" side of the line. If WLP was correct, the contract pursuant to which the Adjudicator was appointed simply did not exist, and the Adjudicator did not have the jurisdiction to bind the parties to his conclusion on this foundational question.
Based on these findings, the enforcement application failed and Constable J did not specifically consider the effects (if any) of Takhar v Gracefield Developments [2019] UKSC 13, a Supreme Court decision, on the question of whether or not the Decision was procured by fraud.
Gaynor Chambers appeared for WLP at the freezing injunction return and the enforcement hearing. Gaynor also appeared in Deerglen and Viridis, two of the earlier adjudication cases referred to in Constable J's judgment, which lay the foundations of the distinction between the circumstances in which an adjudicator will be deemed to have had jurisdiction to reach a temporarily binding decision when the underlying contract is disputed and when he or she will not.
You can read the full judgment here.
The link to the allied freezing injunction case is here.
