Redworth Construction Ltd v Brookdale Healthcare Ltd

The contractor could not argue its case that there was a contract in writing before the court on different grounds to those it advanced before the adjudicator

Technology and Construction Court
His Honour Judge Richard Havery QC
31 July 2006
One of the jurisdictional challenges raised by the employer to the enforcement by the contractor of the adjudicator's decision was that there was no contract in writing within the meaning of section 107 of the Construction Act, with the result that the adjudicator did not have jurisdiction, on the basis that material terms of the contract between the employer and the contractor were never committed to writing. The adjudicator when faced with the same challenge in the adjudication itself made a non-binding decision that the challenge was incorrect. One of the issues before the court in the enforcement proceedings was whether the contractor was constrained to advance its case in response to the employer's challenge on the same grounds it had advanced before the adjudicator.
Judge Havery concluded that the contractor was so constrained on the basis that it was bound by the principle of election (and could not "blow hot and cold" or "approbate and reprobate" its earlier argument before the adjudicator) and that it would not be just to allow the contractor to resile from its election. The judge stated that the principle of election was that a party that had taken some benefit under an instrument such as a will or an order of the court could not disavow that instrument so as to obtain a further benefit. Whilst the contractor was not seeking to disavow the adjudicator's decision (since it was seeking to disavow the submissions it had made before the adjudicator), caselaw established that the phrases "blow hot and cold" and "approbate and reprobate" should be taken to express that the party in question was to be treated as having made an election from which he could not resile but would not be regarded as having so elected unless he had taken a benefit under or arising out of the course of conduct he first pursued and with which his present action was inconsistent. In the instant case the contractor elected to put its argument in a particular way to obtain a benefit, namely the adjudicator's decision as to his jurisdiction and substantively, with the result that the contractor obtained both these benefits regardless of whether the same benefits could have been obtained by other arguments where, as in the instant case, it was not clear that such benefits could have been so obtained.