Sg South Ltd V Swan Yard (Cirencester) Ltd

The adjudicator had jurisdiction to make his decision despite there having been no written contract by reason of the parties' exchanges in the adjudication and/or the court proceedings amounting to an exchnage of written submissions under section 107(5) of the Construction Act
 

 

SG SOUTH LTD V SWAN YARD (CIRENCESTER) LTD
Technology and Construction Court
Coulson J
26 February 2010
 

 
The adjudicator awarded a specific sum to the contractor in respect of interim payments. The contractor brought court proceedings against the employer to enforce the decision. The employer did not seek to contend in the adjudication or in the court proceedings that the adjudicator did not have jurisdiction despite there being no formally executed contract in writing. The parties instead proceeded throughout on the basis that there was a contract which incorporated the terms of the JCT Management Contract. Section 107(5) of the Construction Act provides that an exchange of written submissions in adjudication, arbitral or legal proceedings in which the existence of an agreement otherwise than in writing is alleged by one party against another party and is not denied by the other party in his response constitutes as between those parties an agreement in writing to the effect alleged.
 
Coulson J held that the adjudicator had jurisdiction to make his decision despite there having been no written contract by reason of the parties’ exchanges in the adjudication and/or the court proceedings amounting to an exchange of written submissions under section 107(5) of the Construction Act. Whilst the language of section 107(5) of the Construction Act was a little opaque, it appeared to be designed to prevent a responding party who had accepted the adjudicator's jurisdiction notwithstanding the absence of a clear contract in writing from going back on his concession. Judge Toulmin in Ale Heavy Lift v MSD Darlington (2006) held that it was not open to the defendant to argue on enforcement that the adjudicator had no jurisdiction because of the exchange of written submissions in the adjudication which he said amounted to “an agreement in writing to the effect alleged”. The judge was plainly influenced by the fact that in that case, as in the instant case, no jurisdictional challenge had been made to the adjudicator at the time of the adjudication. It was clear in the instant case that the exchanges in the adjudication and/or the court proceedings amounted to an exchange of written submissions in which the existence of an agreement otherwise than in writing was been alleged by the contractor and was not denied by the employer.
 
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