Maymac Environmental Services Ltd -v- Faraday Building Services Ltd
Even if the finding that the contractor's contention that there was no concluded sub-contract should be rejected was wrong, the sub-contractor was still entitled to summary judgment to enforce the adjudicator's decision in its favour
16 October, 2000
The sub-contractor applied for summary judgement to enforce the adjudicator's decision in its favour. The contractor applied to strike out the claim on the ground that there was no concluded sub-contract between the parties because in a letter not before the adjudicator, the sub-contractor stated to the contractor that it was unaware of the terms of the main contract and that until the sub-contractor received a copy of the main contract, it could not acept or be bound by its terms and conditions or b aware how it impacted on the sub-contract. The contractor further contended that the parties proceeded on the basis of a shared mistake, ie that they thought that there was a sub-contract when there was not one, with the result that the adjudication should be set aside. Judge Toulmin held that even if his finding that the contractor's contention that there was no concluded sub-contract should be rejected was wrong (with the result that there was no concluded sub-contract or a sub-contract which was different to the one on which the adjudicator based his decision), the sub-contractor was still entitled to summary judgment to enforce the adjudicator's decision. This was because such a finding was in accordance with the authorities. The sub-contract as described in the sub-contractor's notice of reference was accepted by the contractor as the one to which the Act and the Scheme for Construction Contracts applied with the results that (1) The contractor accepted the adjudicator's jurisdiction to determine the dispute which the sub-contractor had referred and on which the adjudicator had made his decision and (2) The adjudicator's decision could not be challenged on the basis that he found the wrong sub-contract insofar as he adjudicated the dispute which was referred to him. In addition the contractor was estopped by representation and convention from arguing before the court that the Scheme for Construction Contracts did not apply and that the adjudicator was not entitled to make a binding adjudication until the final determination of the dispute insofar as it consented to submit to the adjudication and admitted during the course of the adjudication that there was a sub-contract to which the Act and the Scheme applied. Advice Note If a defendant participates in the adjudication process and challenges the decision in court enforcement proceedings on the ground that there was no construction contract, his challenge will fail.