Supablast (Nationwide) Ltd V Story Rail Ltd

The contractors contention that there were two sub-contracts should be rejected with the result that the adjudicators decision awarding the sub-contractor a specified sum should be enforced by summary judgment



Technology and Construction Court
Akenhead J
21 January 2010
The sub-contractor referred to adjudication the dispute as to the value of its final account. The adjudicator awarded the sub-contractor a specified sum. The contractor opposed the enforcement of that decision on the basis of its contention that the adjudicator had not had jurisdiction because there were two sub-contracts, namely for the original works of scaffolding, grit blasting and painting and for the steel repair works. This meant that have must been more than one dispute referred. The adjudicator rejected this jurisdictional challenge on the basis that there was one sub-contract for the works of scaffolding, grit blasting and painting and that the steel repair works were instructed as a variation to the sub-contract.
Akenhead J rejected the contractor’s contention as well as the basis on which the adjudicator had proceeded. He instead held that there was only one sub-contract covering all of the various types of work carried out with the result that the adjudicator’s decision should be enforced by summary judgment. The objective analysis of the legal relationship between the parties up until the time that the final account dispute was referred to adjudication was that the parties agreed no later than their meeting that both the original (scaffolding, grit blasting and painting) works and the steel repair works should be dealt with under the umbrella of one sub-contract whose essential and indeed detailed terms were recorded in the minutes of that meeting. Even if that in some way was wrong, the parties' behaviour thereafter was such that there would be an estoppel by convention whereby the parties proceeded on the basis that there was only one sub-contract for all the works. In the light of the above there was an absence of reality in the contractor’s contention, notwithstanding that it was put professionally. Whilst it was therefore not necessary to decide whether the steel repair works could have been properly instructed as a variation under the sub-contract (as was held by the adjudicator), there was a reasonably arguable defence at the very least (in the absence of any agreement that those works were to be treated as a variation) that they could not have been so instructed.