Harris Calnan Construction Company Ltd v Ridgewood Kensington Ltd
| Jurisdiction | England & Wales |
| Judge | HHJ Peter Coulson QC |
| Judgment Date | 15 November 2007 |
| Neutral Citation | [2007] EWHC 2738 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Docket Number | Case No: HT-07330 |
| Date | 15 November 2007 |
[2007] EWHC 2738 (TCC)
IN THE HIGH COURT OF JUSTICE
TECHNOLOGY & CONSTRUCTION COURT
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
His Honour Judge Peter Coulson, Q.c.
Case No: HT-07330
Mr. C. Pimlott (instructed by Silver Shemmings LLP) for the Claimant.
The Defendant was not present and was not represented.
Introduction
This is a claim for £102,274.85 arising out of an adjudication decision of Mr. Tony Bingham, dated 2 nd August, 2007. The claim is made up of the outstanding principal sum of £99,366.14, due by reference to that decision, and the sum of £2,908.71, due by way of interest.
The Defendant is not here and is not represented. However, the Defendant has taken a variety of points in the correspondence and, very properly, Mr. Pimlott, for the Claimant, has dealt with those points in his helpful skeleton argument. It seems to me therefore appropriate that I deal with those points by way of a short Judgment, both because they are raised by way of defence to the application for summary judgment, and because they are of some wider significance.
Contract In Writing
The first point taken by the Defendant is the suggestion that the adjudicator did not have the necessary jurisdiction to decide the dispute because there was no contract in writing. This was a point raised fair and square in the original adjudication. It was a point on which the Defendant made detailed submissions. The adjudicator considered those submissions and decided that there was a contract in writing. The jurisdictional challenge therefore failed.
A party who has a jurisdictional challenge in adjudication has a clear choice. He can agree that the adjudicator should decide the question of jurisdiction, and to be bound by that result. Alternatively, he can reserve his right to argue that, whatever the adjudicator decides, the adjudicator did not have jurisdiction to reach that conclusion.
Project Consultancy Group -v—Trustees of the Gray Trust [1999] BLR 377 , a decision of Dyson J (as he then was), is an example of a case where the party with the jurisdictional challenge made it clear before, and all the way through the adjudication process, that it challenged the jurisdiction of the adjudicator. Therefore, when the matter came before the court on an enforcement application, the Judge had no hesitation in finding that the jurisdictional challenge remained and had not somehow been waived merely because the adjudicator had dealt with the issue in the adjudication. An example of the alternative approach that a party seeking to challenge the jurisdiction of the adjudicator might take can be found in Nordot Engineering Services Ltd. -v—Siemens plc, a decision of His Honour Judge Gilliland, Q.C., sitting in the TCC in Salford in April 2000. In that case, the Judge found that the parties had agreed that the adjudicator's decision on the question of jurisdiction would be binding and thus could not subsequently be opened up.
I refer to these cases because, in his skeleton argument, Mr. Pimlott, referred to one of the older cases on this issue, namely, Whiteways Contractors (Sussex) Ltd. -v—Impresa Castelli Construction (UK) Ltd. (2000) 16 Const.L.J., 453. That was a case in which His Honour Judge Bowsher, Q.C. concluded that, because the adjudicator's decision on jurisdiction was part of his overall decision, and that overall decision was binding on the parties, then the decision as to jurisdiction must also be binding.
It seems to me that the decision in Whiteways, along with a number of the earlier decisions dealing with challenges to the adjudicator's jurisdiction in which similar views were expressed, needs to be treated with some caution. I consider that the better view is that, in circumstances such as these, the court must examine whether or not, when the jurisdiction point was raised in front of the adjudicator, the parties agreed to be bound by his conclusions. If so, the adjudicator's decision on jurisdiction is binding. If the challenger's position was reserved, and he made it clear that, although he was content for the adjudicator to express a view on the point, he did not agree to be bound by that view, it is not binding.
In the present case there is no suggestion in any of the documents before the court that the Defendant, Ridgewood, ever reserved its position. Indeed, on the face of the documents, and in particular on the face of the adjudicator's decision, it seems clear that Ridgewood argued that the adjudicator did not have jurisdiction and put their submissions in writing, without reserving their position at all. They appeared, therefore, to be content to be bound by his decision on jurisdiction. I have seen nothing to suggest that they reserved the right to argue at any later stage that the adjudicator did not have the jurisdiction to reach that decision. Accordingly, it seems to me that the decision that the adjudicator reached as to the existence of a contract in writing cannot now be challenged by Ridgeway.
Even if I was wrong about that, and in some way Ridgewood could still challenge the adjudicator's jurisdiction, I consider that, on the facts, the Defendant cannot make out that the adjudicator was arguably wrong in the conclusion that he reached. Indeed, I would say that the adjudicator was almost certainly right, and that there was a contract in writing.
It is true that the contractual letter in question was in the form of a letter of intent. There have been a number of cases recently, including the decision of His Honour Judge Wilcox in Bennett Electrical Services Ltd. -v—Inviron Ltd. [2007] EWHC 46 (TCC), and the decision of His Honour Judge Thornton Q.C. in Mott McDonald Ltd. -v—London & Regional Properties Ltd. [2007] EWHC 1055 (TCC), in which the particular letters of intent in question were ruled not to be contracts where all the terms were in writing.
However, all these cases turn on their own facts. In the present case, the letter of intent made plain that there was complete agreement as to the parties to the contract; as to the contract workscope (because it was contained in what was described as “Tender Documents dated 2 nd November, 2005”); as to an agreed lump sum of £200,787.75; as to an agreed set of contract terms (namely the JCT 2005 Standard Form, Private with Quantities), with 5 percent retention and...
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