Cain Electrical Ltd v Cox (t/a Pennine Control Systems)

For enforcement of an adjudicator’s decision, jurisdiction is determined by the construction contract and the evidence relied upon, including the parties’ position in the enforcement proceedings. A party may establish that the contract satisfies the writing requirements of section 107 of the Housing Grants Construction and Regeneration Act 1996 where it no longer relies on alleged oral terms and the opposing party has consistently denied that such terms were agreed. The Notice of Intention to Refer is relevant, but it does not alone determine the scope of the adjudicator’s jurisdiction. Where there is no real prospect of proving that the adjudicator lacked jurisdiction, summary judgment should be granted to enforce the decision.

Cain Electrical Ltd sought summary judgment under CPR Part 24 to enforce the unpaid balance of an adjudicator’s decision concerning cable works at the Humber Bridge. The adjudicator had awarded sums for outstanding invoices, interest, compensation and his fees. Pennine Control Systems resisted enforcement, alleging that the adjudicator lacked jurisdiction because Cain Electrical had relied during the adjudication on oral agreements concerning duct proving, invoicing and payment dates. The central issue was whether the contract nevertheless satisfied the writing requirements of section 107 of the Housing Grants Construction and Regeneration Act 1996, and whether Cain Electrical could rely at enforcement on the written purchase order and related emails.

1. Judgment for the claimant. The claimant was entitled to enforce the unpaid balance of the adjudicator’s decision and the adjudicator’s fees.
2. The court rejected the submission that the adjudicator necessarily lacked jurisdiction because the Referral Notice and witness evidence had referred to alleged oral terms. The relevant question was whether there was a real prospect that the defendant could establish at trial that the adjudicator lacked jurisdiction, having regard to the evidence and the parties’ positions in the enforcement proceedings.
3. The Notice of Intention to Refer was not, by itself, decisive of jurisdiction. Although it may help define the width of a reference, jurisdiction in accordance with the notice depends on the evidence placed before the adjudicator. The claimant had retreated from reliance on the alleged oral agreement concerning duct proving, while its position on oral payment terms was unnecessary because sections 109 and 110 of the Act and Part 2 of the Scheme supplied the relevant payment machinery.
4. The claimant’s particulars of claim disowned the alleged oral terms and relied on the purchase order, the documents incorporated into it and the email exchange of 29 July 2010. The defendant had always denied that any terms were agreed orally. In those circumstances, there was no real prospect of the defendant proving that the written contract failed section 107 or that the adjudicator lacked jurisdiction.