Donald Insall Associates Ltd v Kew Holdings Ltd

On an application to enforce an adjudicator’s decision, the court applies the ordinary CPR 24.2 test. Jurisdictional objections may be decided summarily where the evidence permits a proper determination and the defendant has no real prospect of establishing them. A contract’s parties are identified objectively from the documents and relevant evidence. A signature by an individual expressly as a company director, supported by contemporaneous conduct identifying the company as client, may establish a contract with the company even where the initial proposal was addressed personally. In adjudication, jurisdictional objections must be raised appropriately and clearly. A party cannot generally reserve new objections until enforcement. Contractual provision for additional services to be valued by time charge or agreed lump sum does not itself create an oral variation.

Donald Insall Associates Ltd sought summary judgment to enforce an adjudicator’s decision awarding unpaid architectural fees, interest and adjudicator’s costs. Kew Holdings Ltd resisted enforcement, alleging that there was no contract between it and the claimant, that the alleged contract was not in writing for the purposes of section 107 of the 1996 Act, that no dispute had crystallised, and that the adjudication lacked a proper contractual or statutory basis.

The adjudicator rejected the jurisdictional challenges. The central issues before the Technology and Construction Court were whether the documentary and witness evidence established a written construction contract between the parties, whether the later fee arrangements involved an unenforceable oral variation, and whether Kew had waived or was precluded from raising further jurisdictional objections.

1. Summary judgment and adjudication enforcement. The court applied CPR 24.2. It was unnecessary to conduct a mini-trial, but the court could decide a short legal or construction issue where it had the evidence and the parties had an adequate opportunity to address it. Adjudication enforcement normally proceeds by summary judgment, subject to jurisdictional and natural justice issues.
2. Contracting party. The objective evidence established a concluded contract on the fee proposal between DIA and Kew on 14 October 2010. Mr Brothers signed expressly as Kew’s director. The subsequent email identifying Kew as DIA’s client and referring to confirmation of the appointment was contemporaneous evidence supporting that construction. Invoices sent to Mr Brothers, payments made by both Mr Brothers and Kew, and the intended occupation of the property were background matters and were not determinative.
3. Written construction contract and additional services. The contract satisfied the applicable written-contract requirement in section 107 of the 1996 Act. The fee proposal expressly contemplated additional services remunerated by time charge or by an agreed lump sum. Consequently, the later claim for time-based fees did not depend on an oral variation or separate oral contract. In any event, the 11 October 2015 email would have provided sufficient written evidence of the valuation basis.
4. Crystallised dispute. The unpaid fee dispute had crystallised. Sending invoices to Mr Brothers by email was a convenient means of notifying Kew through its director and did not prevent a dispute arising between DIA and Kew.
5. Waiver and late jurisdictional objections. Applying the guidance in Bresco Electrical Services Ltd v Michael J Lonsdale (Electrical) and Cannon Corporate Limited v Primus Build Ltd, [2019] EWCA (Civ) 27, jurisdictional objections must be raised appropriately and clearly. Kew raised specific objections during the adjudication, but the further argument about the source of the adjudication jurisdiction was raised too late. In any event, the adjudication proceeded under the statutory scheme and the distinction made no difference.
6. The defendant had no real prospect of establishing that the adjudicator lacked jurisdiction. The claimant was entitled to summary judgment enforcing the adjudicator’s award.