Ale Heavylift V Msd (Darlington) Ltd
Technology and Construction Court
His Honour Judge John Toulmin CMG QC
31 July 2006
The contractor contended that there were effectively two contracts and the second of those contracts was not in writing (or was a substantial oral variation of the first contract) so that the Construction Act 1996 did not apply and the adjudicator did not have jurisdiction. Judge Toulmin rejected this contention. There was one written contract within the meaning of section 107 of the Construction Act formed by the contractor’s acceptance of the crane hirer’s standard terms and conditions.
The basis for Judge Toulmin’s decision was that the simple answer to the contractor’s contention, as a matter of contract, was that where, as in the instant case, the jurisdiction of the adjudicator was not challenged on a particular ground during the course of the adjudication and the parties agreed to proceed with the adjudication despite the possibility of a challenge on that ground, the challenge had been waived and/or the responding party was estopped from advancing such a contention. If that answer were not correct, there was a written contract within the meaning of section 107(5) of the Construction Act by the contract having been evidenced. It was clear from the notice of adjudication and the referral notice that the adjudicator was being asked to adjudicate on a written agreement between the parties which conformed with section 107 of the Act. It was equally clear from the sub-contractor’s response that it agreed that the adjudicator was being asked to adjudicate on a dispute arising out of precisely the same contract, namely that based on the crane hirer’s standard terms and conditions. If it were necessary to disagree with Judge Bowsher’s interpretation of section 107(5) that the adjudication proceedings in which the contention that there was a written contract had to be the adjudication proceedings in question, it should be disagreed with. However, it was only necessary to follow Ward LJ's proposition in RJT that where the material relevant parts of a contract alleged in the written submissions in the adjudication were not denied, that was sufficient. That proposition applied both to submissions relating to an alleged written agreement as well as to submissions relating to an alleged oral agreement.