Twintec Ltd v Volkerfitzpatrick Ltd (TCC - 24.1.2014)

An injunction should be granted to restrain the contractors referral to adjudication from proceeding where it claimed from the sub-contractor the cost of tests on the floor it had carried out for the purpose of the ongoing court proceedings




Technology and Construction Court
Edwards-Stuart J
24th January 2014
The sub-contractor was engaged to construct the floor slabs for a warehouse and wine bottling plant. It was common ground that the sub-contract was based on the sub-contractor’s acceptance of the contractor’s letter of intent. The tenant contended that the floor of the warehouse as constructed was unfit for its purpose and brought court proceedings against various parties, including the contractor and sub-contractor. The contractor carried out various tests on the slabs. Directions were given by the court for further testing to be carried out. The contractor brought an adjudication against the sub-contractor in which it claimed the cost of the tests. The contractor applied for the appointment of an adjudicator to the President of the RICS as the adjudicator nominating body purportedly pursuant to the terms of the DOM/2 form of sub-contract. The sub-contractor applied in the court proceedings for an injunction to restrain the contractor from proceeding with the adjudication.
Edwards-Stuart J held in relation to the terms of the sub-contract that whilst some of the terms of DOM/2 had been incorporated, the adjudication provisions of DOM/2 had not been incorporated into the sub-contract. This meant that the adjudicator, who was purportedly appointed pursuant to those provisions, did not have jurisdiction. He went on to hold that the injunction sought by the sub-contractor should therefore be granted. Whilst the nominating authority who purported to nominate the adjudicator (the President of the RICS) would in any event have been the nominating authority under the Scheme for Construction Contract (which was incorporated into the sub-contract by default), the validity of the procedure by which the adjudicator was nominated went to the heart of his jurisdiction. The invalidity of the adjudicator's appointment meant that any decision by him would be a nullity in the absence of any agreement by the parties to the contrary. No useful purpose would be served by allowing an adjudication to proceed in these circumstances. Whilst an injunction to restrain the pursuit of a referral to adjudication is a step that should be taken only in exceptional circumstances, the invalidity of the adjudicator’s nomination and appointment with his consequent lack of jurisdiction was sufficient for the injunction to be granted.