Pegram Shopfitters Limited V Tally Wiejl (UK) Limited
Technology and Construction Court
His Honour Judge Anthony Thornton QC
14 February 2003
The contractor contended in the adjudication that its own set of conditions had been incorporated with the result that the Scheme for Construction Contracts would have applied to the adjudication since its conditions admittedly did not comply with the requirements for a contract under section 108 of the Construction Act 1996. The employer contended that JCT PC 98 had been incorporated with the result that the Scheme would not have applied.
The adjudicator proceeded on the basis that the Scheme applied and made a decision awarding the contractor a specified sum of money. The employer did not pay the amount awarded and the contractor brought court proceedings to enforce the decision by way of summary judgment. The employer contended that the adjudicator lacked jurisdiction to make any award in the above circumstances.
Judge Thornton disagreed. He held that unless a pure question of jurisdiction as to whether or not a contract existed arose, a court ought ordinarily not decide a disputed question in enforcement proceedings since that question had been left for decision by the adjudicator under the Act. This meant that where, as in the instant case, there was agreement that there was a construction contract but there was a further dispute as to which set of terms and conditions of contract had been incorporated into the contract, this further dispute should be answered by the adjudicator. The judge went on to hold that notwithstanding the further dispute between the parties as to which set of terms and conditions of contract had been incorporated into the contract, the adjudicator had been correct. This was on the basis that there was a construction contract, that its terms did not clearly and unequivocally incorporate any adjudication procedural rules by reason of the further dispute and that in consequence the Scheme applied to the adjudication.
The courts have shown themselves to be reluctant to interfere with an adjudicator’s decision even if there is a jurisdictional challenge that the adjudicator decided disputes regarding the nature of the contract itself. Judge Thornton has made it clear that the adjudicator does have the jurisdiction to decide the terms of the contract provided that there is no dispute that a contract was concluded.