High Tech Construction Limited v WLP Trading and Marketing Limited

Summary enforcement of an adjudicator’s decision is inappropriate where there is a real prospect that the contract relied upon to found the adjudicator’s jurisdiction never existed. The court distinguishes that situation from a dispute about the terms of an agreed foundational contract, or about whether later work was performed under that contract or under variations. Those matters ordinarily go to the substantive dispute. The same jurisdictional principle applies where the alleged contract contains the adjudication provision and the alternative contractual arrangements would also permit adjudication. A party may not avoid enforcement by advancing a wholly new jurisdictional case, but it may rely on a non-existence argument squarely raised before the adjudicator. The fraud challenge need not be determined where the jurisdictional challenge itself prevents summary enforcement.

High Tech Construction Limited sought summary judgment to enforce an adjudicator’s decision awarding it £2,142,623.35 plus interest for construction works. WLP Trading and Marketing Limited resisted enforcement on the grounds that the alleged JCT Design and Build Sub-Contract had never been agreed, that the decision was procured by fraud, and that payment should be secured because of HTC’s alleged impecuniosity.

WLP contended that the parties instead operated under arrangements for enabling works and a separate reinforced-concrete-frame contract. The central issue was whether the dispute about the existence and identity of the foundational contract was jurisdictional, or merely part of the substantive payment dispute.

1. Application refused. The claimant was not entitled to summary enforcement of the adjudicator’s decision.
2. The court applied the summary-judgment test in Three Rivers DC v Governor & Company of the Bank of England (No. 3), [2003] 2 AC 1. Summary judgment is unavailable where the defendant has a real prospect of establishing facts which would defeat the claimant’s entitlement to relief.
3. The court reaffirmed the general policy that adjudicators’ decisions should ordinarily be enforced despite errors of fact, law or procedure, subject to excess of jurisdiction and serious procedural unfairness. That policy does not remove the requirement for an appropriate construction contract conferring jurisdiction.
4. The court treated Pegram Shopfitters v Tally Weijl (UK) Ltd, [2004] 1 WLR 2082, as continuing authority. Where the alleged foundational contract may not exist, or where the competing contracts prescribe materially different adjudication procedures, the adjudicator’s jurisdiction cannot be established merely by treating the issue as a substantive error. The requirement of a sufficiently secure identification of the contractual terms remains material.
5. The court distinguished cases such as Air Design (Kent) Ltd v Deerglen (Jersey) Ltd, [2008] EWHC 3047 (TCC), Purton (t/a Richwood Interiors) v Kilker Projects, [2015] EWHC 2642 (TCC), and RMP Construction Services v Chalcroft, [2016] BLR 134. Those decisions concerned an agreed or otherwise established foundational contracting process, with disputes about variations, precise terms, or the point at which the contract was formed. They did not displace the rule applicable to an existential dispute about the alleged jurisdiction-conferring contract.
6. The present dispute fell on the existential side of the line. WLP had a real prospect of proving that the January JCT Contract did not exist. Its alternative case that the correct contractual framework involved more than one contract would have been new if advanced independently, but the non-existence challenge had been squarely raised in the adjudication and had not been waived.
7. The fraud issue did not require determination. If the jurisdictional conclusion were wrong, the court would have been bound by Speymill Contracts Ltd v Baskind, [2010] BLR 257, and PBS Energos Ltd v Bester Generacion UK Ltd, [2020] BLR 355, on fraud in adjudication enforcement. The stay-of-execution issue was therefore academic.