Euro Construction Scaffolding Ltd V SLLB Construction Ltd

The contractor's contention that the adjudicator did not have jurisdiction by reason of the sub-contract containing an oral fitness for purpose term should be rejected
Technology and Construction Court
Akenhead J
19 December 2008
The sub-contract work which formed the subject matter of the (original) sub-contract was the provision of scaffolding for works being carried out at the house in question. The contractor requested the sub-contractor to carry out further work to the excavations to be made at the house for the installation of a swimming pool. The sub-contractor submitted a written quotation for the scaffolding for the swimming pool works which was accepted orally by the contractor. A payment dispute arose which was referred to adjudication. The contractor raised a jurisdictional challenge that it was an oral term of this sub-contract for this further scaffolding that it would be fit for the purposes required by it with the result that the sub-contract was not in writing. The adjudicator considered and rejected this challenge and decided that the contractor should pay the sub-contractor a specified sum. The contractor in the court enforcement repeated this challenge.
Akenhead J rejected this challenge. The sub-contract was (wholly) in writing for the purpose of section 107 of the Construction Act. The decision made by the adjudicator ordering the contractor to pay the sub-contractor a specified sum should therefore be enforced. The onus was on the contractor in the court enforcement proceedings to show that it had a real prospect of establishing its case at trial on the issue of whether there was an oral fitness for purpose term (so as to succeed in persuading the court that summary judgment should not be ordered to enforce the adjudicator's decision by way of summary judgment). That could only be judged on the written evidence put before the court. The contractor had no such real such prospect on the evidence of its representative before the court (as well as on how the contractor advanced its case before the adjudicator). Akenhead J emphasised that the courts as well as adjudicators were encouraged to examine critically assertions that an adjudicator did not have jurisdiction (see for instance, the observation of Ward LJ in RJT Consulting Engineers v DM Engineering (2002) that adjudicators would no doubt be robust in excluding the trivial from the ambit of the agreement on the basis that the matter had to be entrusted to their common sense).