Euro Construction Scaffolding Ltd v SLLB Construction Ltd

An adjudicator may investigate his own jurisdiction, but the parties must clearly reserve any objection to that jurisdiction. A reservation remains effective where the correspondence, read as a whole, makes the objection clear. For Housing Grants, Construction and Regeneration Act 1996 purposes, a construction contract is evidenced in writing only where its express terms are recorded. An implied term does not prevent the written quotation from satisfying that requirement. The court should scrutinise jurisdictional objections robustly and, on summary judgment, ask whether the defence has a real prospect of success, judged by the written evidence and the absence of reality rather than probability.

Euro Construction Scaffolding Ltd sought enforcement of an adjudicator’s decision awarding payment for pool scaffolding works carried out for SLLB Construction Ltd. Euro had initially referred the dispute under an earlier scaffolding contract, but the parties subsequently accepted that the relevant agreement was the December 2007 pool scaffolding contract.

SLLB maintained that the adjudicator lacked jurisdiction because the contract was not evidenced in writing under section 107 of the Housing Grants, Construction and Regeneration Act 1996. It argued that an oral term required the scaffolding to provide a sufficiently robust solution for retaining the excavation walls. The issues were whether SLLB had authorised the adjudicator to decide his jurisdiction and, if not, whether he nevertheless had jurisdiction.

1. Reservation of jurisdiction. SLLB made an adequate and effective reservation. Its correspondence consistently reserved objections concerning the existence of a compliant contract in writing, and the adjudicator himself understood that reservation. The absence of a further express reservation in the letter of 19 September 2008 was immaterial in context. The parties had not agreed that the adjudicator could determine conclusively whether he had jurisdiction.
2. Written contract. The majority principle in [2003] BLR 217, as summarised in [2004] EWHC 3286 (TCC), was that all express terms must be recorded in writing for section 107 purposes. The alleged statements that the scaffolding could provide a robust solution communicated the intended purpose of the works. On the written evidence, they were not an agreed express contractual term. The quotation therefore contained all the agreed terms. Any fitness-for-purpose obligation was implied, and its existence did not prevent the quotation from being a contract in writing.
3. Summary judgment. Applying the principles under CPR 24.2, SLLB had to show a real prospect of successfully defending enforcement. The written evidence provided no such prospect as a matter of reality. The court was also entitled to examine critically a jurisdictional objection and exclude a merely technical objection where the written contract and dispute were sufficiently identified.
4. The adjudicator had jurisdiction, although not necessarily for the reasons he gave. His decision was enforced. Judgment was entered for Euro for £22,496.60, interest of £2,209.60 and continuing interest, together with adjudicator’s fees of £3,983.66.

First-instance enforcement proceedings. The judgment does not state any prior appellate decision in this litigation.