Vitpol Building Service V Samen
The court had the jurisdiction to determine the parties' dispute as to whether there was a contract and terms of the contract contended for by the contractor despite no adjudication having been begun and directions should be made to enable that determination to be made
16 September, 2008
VITPOL BUILDING SERVICE V SAMEN
Technology and Construction Court
16 September 2008
16 September 2008
The homeowner invited tenders for the works. The contractor's tender was successful and it began work. Whilst there were negotiations as to price, workscope and contract terms, no formal contract was signed. Disputes arose between the parties and the homeowner instructed the contractor to leave the site with immediate effect (which it did). A pre-action protocol process was gone through, although no meeting had taken place as part of that process. Just before the end of the pre-action process the contractor announced its intention to adjudicate the substance of its disputes and began Part 8 court proceedings in which it sought declarations in respect of the existence of the contract and the contract terms. One of the declarations sought by the contractor was that the adjudication provisions of clause 9.2 of IFC 2005 had been incorporated into the (alleged) contract. The homeowner submitted that the court had no jurisdiction to determine the dispute as to the alleged existence and/or terms of the contract because (i) No adjudication had been begun and (ii) The contractor's applications for declarations did not arise out of a disputed adjudication and therefore did not fall within the scope of paragraph 9.4.1 of the Technology and Construction Court guide. Coulson J rejected the homeowner's submissions. The court did have jurisdiction to make the declarations sought by the contractor in the Part 8 court proceedings so that the contractor knew whether it had the right to adjudicate (in advance of the adjudication it intended to begin). This was so despite no adjudication having been begun by the contractor at the time the contractor's application for declarations was heard. The court should make directions which would lead to the resolution of the underlying dispute about the contract and/or its terms which at least envisaged the possibility of oral evidence. The Technology and Construction Court guide could not define the court's jurisdiction on the basis of construing that document as if it were a statute or a contractual exclusion clause and did not shut out a bona fide dispute between the parties as to the existence of a contract which might give the claiming party the right to adjudicate.