Technology and Construction Court

Fraser J

6 February 2018

It will usually be possible for the issue of whether a contract was entered into to be decided summarily and a trial with contested evidence given orally on that issue will only very rarely be justified

 The summary judgment application heard by Jefford J in this case was unsuccessful. The judge declined to grant summary judgment to enforce the adjudicator's decision on the basis that the factual dispute regarding the parties' alleged oral contract was too complex for summary judgment. She held that the defendant had a real prospect of succeeding in its defence, which was more than "fanciful" in that the defendant asserted that it was not clear who (if anyone) the claimant had contracted with. Fraser J conducted the trial of this issue and upheld the adjudication award in favour of the claimant. In doing so Fraser J laid down guidelines as to whether trial of the issue of whether there was a contract raised by a responding party in opposing a summary judgment application should itself be determined summarily.

 He stated in this connection that adjudication enforcement is to resolve disputes between the parties under construction contracts speedily. However, it will only be in very rare cases that adjudication enforcement applications will result in trials relevant to that enforcement issue. If the jurisdictional point was simply a matter of law (for example of contractual or statutory construction), the court would deal with it summarily. The position was potentially different if the jurisdictional challenge was dependent on fact and evidence where the issue was whether the defendant had no or a realistic prospect of establishing that there was no contract. The courts will be reluctant to find that there was no concluded contract if the subject matter of the putative contract has been performed. It will usually be possible for such issues to be decided summarily. A trial with contested evidence given orally will only very rarely be justified. Parliament having decided that oral construction contracts should fall within the statutory regime of adjudication, this is not the place to debate the possibility of the practical difficulties that may arise as a result. However, this case is a good example of such difficulties that may occasionally arise where a contract is purely oral and one party to it flatly denies that such an agreement was made. It must be remembered that adjudication decisions simply deal with the position of the parties on an interim basis. The latitude to which Coulson J referred will not lead to any permanent injustice.