Purton (t/a Richwood Interiors) v Kilker Projects Ltd

For summary judgment enforcing an adjudicator’s decision, the court asks whether the defendant has no real prospect of successfully defending the claim and whether any other compelling reason requires a trial. Substantial performance and payment are highly relevant to whether the parties intended contractual relations, although performance alone is not conclusive. Where works were agreed and performed but contractual detail remains uncertain, the court may find a contract and, where appropriate, infer payment on a quantum meruit basis.

An adjudication referral is not invalid merely because the contract is inaccurately characterised in some respects. Jurisdiction depends on the existence of a construction contract and a dispute arising under it. Where the adjudicator had jurisdiction and the contractual characterisation cannot affect the substantive outcome, the court should enforce the decision and approbation and reprobation does not arise.

The claimant sought summary judgment to enforce an adjudicator’s decision requiring the defendant to pay £147,223, together with the adjudicator’s fees and expenses. The dispute concerned joinery works carried out at the Dorchester Hotel.

The defendant argued that no concluded contract existed and that the adjudicator therefore lacked jurisdiction. Alternatively, it argued that any contract was not the contract described in the referral. The claimant relied on an alleged oral agreement, subsequent variations, substantial performance and payments made by the defendant.

The central issues were whether a construction contract existed, whether any inaccurate description of its terms deprived the adjudicator of jurisdiction, and whether the claimant was precluded from relying on a different contractual characterisation in enforcement proceedings.

1. Summary judgment. The applicable test under CPR 24.2 was whether the defendant had no real prospect of successfully defending the claim and whether there was any other compelling reason for a trial.
2. Existence of a contract. The court held that a contract existed. There had been substantial performance by the claimant and payments of approximately £654,000 by the defendant. The documents also acknowledged an agreed original scope of works, an agreed contract value and subsequent variations. Although performance alone does not necessarily establish a contract, all the circumstances made it unrealistic to contend that the parties had acted without intending legal relations. The principles in RTS Flexible Systems Ltd v Molkerei Alois Müller GmbH & Co KG [2010] UKSC 14 and Percy Trentham Ltd v Archital Luxfer Ltd (1992) 63 BLR 44 supported that conclusion.
3. Jurisdiction and contractual characterisation. Under section 108(1) of the unknown, jurisdiction required a construction contract and a dispute arising under it. It did not require every contractual term to be identified with complete accuracy. Treating every error in characterisation as jurisdictional would make adjudication a formalistic obstacle course inconsistent with its purpose of providing quick and effective remedies.
4. Approbation and reprobation. The principle requires an election from which a party cannot resile and a benefit obtained from the earlier inconsistent course. The court respectfully agreed with the reasoning of Akenhead J in Nickleby FM Ltd v Somerfield Stores Ltd [2010] EWHC 1976 (TCC), and declined to apply the broader approach in Redworth Construction Ltd v Brookdale Healthcare Ltd [2006] BLR 366. Here, any variant in the contract’s precise terms could not affect the applicability of the adjudication regime or the substantive result. No question of approbation and reprobation therefore arose.
5. Summary judgment was entered for £151,407 plus interest and costs. The parties were directed to discuss consequential orders concerning VAT.