Vitpol Building Service v Samen

The TCC has jurisdiction to determine whether a construction contract exists and what terms it contains where that determination may establish a party’s right to adjudicate. That jurisdiction does not depend on an adjudication having started. The TCC guide describes practice and does not define or restrict the court’s jurisdiction. Part 8 may be used where the dispute is principally documentary, even though oral evidence may later prove necessary. The court should adapt procedure to the dispute, including by adopting a hybrid procedure where appropriate. A party should not be deprived of a potential right to adjudicate merely because it has narrowed the issues after an extensive pre-action process.

The claimant carried out building works for the defendant. The parties disputed whether a contract had been made and, if so, which terms had been incorporated, including an adjudication provision in the JCT Intermediate Form 2005 edition. The claimant commenced Part 8 proceedings before the pre-action protocol process was complete, seeking declarations on those issues. The defendant contended that the TCC lacked jurisdiction because no adjudication had begun, and that Part 8 was inappropriate because there was a substantial factual dispute. The court also considered whether the proceedings should be stayed pending a pre-action meeting.

1. Jurisdiction. The TCC had jurisdiction to determine the existence and terms of the alleged contract before any adjudication had commenced. Until that issue was resolved, the claimant could not know whether it had a right to adjudicate. The position was analogous to determining whether a contract contained an arbitration clause before staying substantive disputes for arbitration.
2. The TCC guide was not a statutory or contractual instrument defining jurisdiction. Paragraph 9.4.1 illustrated circumstances in which the TCC might grant declaratory relief in connection with an adjudication. It did not exclude jurisdiction where no adjudication had yet been commenced. The authorities cited as examples of proceedings involving an ongoing adjudication did not establish any contrary limitation.
3. Procedure. Part 8 was presently appropriate because the contractual dispute appeared to depend mainly on contemporaneous documents and no specific factual dispute requiring substantial oral evidence had been identified. If oral evidence later became necessary, the court could adopt a flexible hybrid between Parts 7 and 8. A second claim under Part 7 was unnecessary.
4. Case management. The pre-action meeting should take place and directions should not take effect until the parties had time to reflect on it. A stay was unnecessary. If the dispute was not resolved, the proceedings should progress promptly, while allowing the defendant proper time to prepare evidence.
5. The court recognised that substantial costs might have been incurred by conducting the pre-action process broadly and then focusing on the contractual issue. Costs orders would reflect the view that dealing with all disputes together would have been preferable. That consideration did not justify depriving the claimant of its potential right to adjudicate. Directions were to be made for resolution of the contractual issues.