High Tech Construction Limited v WLP Trading and Marketing Limited

This judgment concerns an application by High Tech Construction Limited (“HTC”) for summary judgment to enforce an adjudicator’s decision dated 16 October 2025 (the “Decision”), made by Mr Matthew Molloy (the “Adjudicator”). The underlying dispute arises out of construction works undertaken at 162 Willesden Lane, London NW6 (the “Site”), a residential development (‘the Project’) owned by WLP Trading & Marketing Limited (“WLP”).

The Adjudicator, appointed following a nomination by the Royal Institution of Chartered Surveyors (“RICS”), determined on a true value basis that HTC was entitled to payment in the sum of £2,142,623.35 (plus interest), representing the balance allegedly due for substantial construction works undertaken at the Site between early 2023 and July 2024. HTC now applies to enforce that Decision. WLP resists enforcement on three principal grounds: (i) that the Adjudicator lacked jurisdiction because the contract relied upon by HTC was not the genuine agreement between the parties; (ii) that the Decision was procured by fraud; and (iii) that, if enforced, the sum should be paid into court due to HTC’s alleged impecuniosity.

HTC’s primary case is that the works were carried out pursuant to a JCT Design and Build Sub-Contract Agreement (DB/Sub/A 2016), said to have been executed at a meeting on 26 January 2023 and later circulated by email in June 2023 (the “January JCT Contract”). As it did before the Adjudicator, WLP disputes that any binding JCT-based contract was ever agreed and describes the assertion that this was the basis of the contractual arrangement as a sham and fraudulent. WLP provides considerably more evidence to support this contention than was provided during the Adjudication. It also articulates for the first time what it says the contractual arrangement governing the work undertaken by HTC was: in summary, WLP (now) contends that the parties operated first pursuant to a series of oral or WhatsApp based arrangements governing demolition and enabling works (the “Enabling Works Contract”); and subsequently a simple lump sum agreement in respect of the reinforced concrete frame works only for an agreed sum of £1,250,000 (the “RC Frame Contract”). The scope of works required to be undertaken under these arrangements was significantly less than included within the January JCT Contract (reflected in the significantly reduced contract sum). Any dispute under such contract or contracts would have been capable of being referred to adjudication pursuant to the Scheme of Construction Contracts by reason of section 108 of the Housing Grants, Construction and Regeneration Act (‘HGCRA’)1996.

In November 2025, HTC secured a Freezing Order against WLP without notice. On the return date, this was maintained for reasons set out in a judgment dated 8 December 2025 ([2025] EWHC 3209 (TCC)).

HTC issued its Notice of Intention to Refer a Dispute to Adjudication on 11 September 2025.

Section 2.0 identified ‘The Contract Particulars’:

“2.1

High Tech was employed to undertake the “groundworks, design and installation of the substructure works including the concrete frame structure and lifts and stair cores and installation of precast stairs and drainage and other ancillary works” (“the Works”) of a development consisting of 22 No. flats over 4 stories, known as 162 Willesden Lane, London, England, NW6 7PQ (“the Project”). There is a construction contract formed between the Parties on or around 1 February 2023 which consists of the Sub-Contract Agreement, the Main Contract Information Schedule, the Design and Build Sub-Contract Conditions (DBSub/C 2016) as amended, and the Numbered Documents (herein “the Contract”). The Sub-Contract sum is £2,392,623.35 (excl. VAT).

2.2

The Contract between the parties falls within the definition of a construction contract for the purposes of the Act. The Works falls within the definition of construction operations for the purpose of the Act. High Tech is entitled to refer the dispute referred to below to Adjudication in accordance with the Scheme and as further discussed within paragraph 3 of this Notice.”

Section 3.0 dealt with ‘Dispute Resolution Provisions’. This provided as follows:

“3.1

The Contract includes an adjudication provision pursuant to Section 8 (Settlement of Disputes);

Article 4): Adjudication

If any dispute of difference arises under this Sub-Contract, either Party may refer it to adjudication in accordance with clause 8.2 of the Sub-Contract Conditions.

17.

Settlement of Disputes

Nominating Body - The Royal Institution of Chartered Surveyor

8.2

If a dispute or difference arises under this Sub-Contract which either Party wishes to refer to adjudication, the Scheme shall apply, subject to the following:

.1 for the purposes of the Scheme the Adjudicator shall be the person (if any) and the nominating body shall be that stated in the Sub-Contract Particulars (item 17);

.2 where the dispute or difference is or includes a dispute or difference relating to clause 3.11.3 and as to whether a direction issued thereunder is reasonable in all the circumstances:

.1 the Adjudicator to decide such dispute or difference shall (where practicable) be an individual with appropriate expertise and experience in the specialist area or discipline relevant to the direction or issue in dispute;

.2 if the Adjudicator does not have the appropriate expertise and experience, the Adjudicator shall appoint an independent expert with such expertise and experience to advise and report in writing on whether or not the direction under clause 3.11.3 is reasonable in all the circumstances.”

HTC applied to the Royal Institution of Chartered Surveyors (‘RICS’) for the nomination of the Adjudicator.

WLP was represented by its own director, Dr Essa, in the Adjudication. Dr Essa made jurisdictional submissions during the adjudication. In his letter dated 11 September 2025 he stated:

The Adjudicator rejected Dr Essa’s submissions, and WLP continued participation under its reservation of rights. The Adjudicator’s decision was encapsulated in due course in paragraph 8 of his Decision. This stated:

“… I set out my thoughts on the challenge [made by WPL] in my e mail timed at 11:39 hours on 11^th September 2025: -

Whilst both parties accept that the other’s case stands a real prospect of success (in the context of the test on summary judgment), it is nevertheless useful context to set out the position in a little more than cursory detail.

HTC says that in January 2023, it signed the January JCT Contract with WLP. On HTC’s case, after negotiation and presentation of a tender in late 2022, the JCT Contract was signed by Dr Essa for WLP and by Mr Osman on 26 January 2023 at a meeting at the Copthorne Tara Hotel, Scarsdale Place, Kensington. HTC says that Dr Essa took the signed original contract away and said to Mr Osman that he would email him a copy. Dr Essa duly did so in June 2023.

WLP’s case is that no January JCT Contract or other form of contract was ever discussed or entered into on 26^th January 2023 as alleged by Mr Osman of HTC. It contends that the document relied upon by HTC as being the January JCT Contract was, to Mr Osman’s knowledge, created in different circumstances and for a different purpose, and it was never intended to reflect a binding agreement between the parties. It relates to a scope and price which was never agreed, and its use to seek payment by HTC is fraudulent.

This case, which has undoubtedly been explained and evidenced in the course of this application in more detail than had been presented in the Adjudication, involves a complex set of facts, in respect of which both parties have provided evidence.

Dr Essa’s evidence is that he was provided with a quotation in the sum of £2,312,000 on or around 11^th September 2022, but that at this stage there was no complete design package and this was one of several indicative tenders Dr Essa obtained.

Dr Essa says that he and Mr Osman orally agreed the Enabling Works Contract for demolition and enabling works to facilitate the first phase piling, which was to be carried out by Cannon Piling Limited. There was no formal written contract, and the agreement was reached in a series of WhatsApp messages and e-mails dated between 24^th January 2023 and 24^th June 2023. Dr Essa’s evidence is that the total agreed was £268,500 although in the event WLP paid £250,000 as this was Dr Essa’s valuation of the works carried out. No works were carried out for an extended time period after completion of the enabling works and first phase piling because, Dr Essa says, he was considering what to do with the site. He decided to see if he could find a buyer, and started negotiations with Frank Clymans of Hestia. Dr Essa says that he involved HTC and Mr Osman in these discussions because he thought that having a contractor in place who could get on with works relatively swiftly would be attractive to Hestia, and because he trusted Mr Osman.

Dr Essa relies upon a set of meeting minutes dated 16^th June 2023 prepared by DWIP, an entity acting as a design and project management consultancy for Hestia. Mr Osman attended that meeting, as did Mr Mabelle, of Global Project, who was the project architect and principal designer for the Project (and known as ‘Mr Bob’). Those minutes state (amongst other things):

WLP contend that these Minutes are completely inconsistent with there being, at that time, the January JCT Contract, which Mr Osman says had come into existence as a binding contract some five months earlier. Mr Osman points to the words ‘for review’ in paragraph 7.1: he says that he had said that he did not have the January JCT contract physically with him (not that it didn’t exist at all), and that Dr Essa had a copy and was due to send him a scanned copy.

Both parties rely upon a series of WhatsApp messages dated the following day between Mr Osman and Dr Essa (although Mr Osman complains that Dr Essa’s reference to it was partial). The full exchange (taken from Mr Osman’s statement) appears to be as follows:

“[07.19] Abbas Almajidi: “I am arranging JC[T] contract for you”.

[07.20] Abbas Almajidi: “will call shortly”

[07.32] Khalid Osman (in Arabic): “Good Morning, Ok I am waiting for your

call.”

[07.45] Khalid Osman: “But I said to Frank we don’t have JCT contract”.

[07.46] Abbas Almajidi:“you have to arrange a JCT contract to his team”.

[07.47] Abbas Almajidi: “otherwise they will not accept”

[07.47] Abbas Almajidi: “you can say misunderstanding”

[07.47] Abbas Almajidi: “I am the Chinese Embassy for some issues”

[07.55] Khalid Osman: “No chance to say misunderstanding as the question

was asked in front of everyone.”

[07.56] Khalid Osman: “And my answer was we are working with Dr Abbas based

on the trust”

[07.57] Abbas Almajidi: “his team need this version and will arrange JCT

copy” [emphasis added]

[07:57] Abbas Almajidi: “I will explain to you”

Mr Osman, emphasising the words ‘this version’, says that this exchange is consistent with there being the January JCT Contract in force. He suggests that during the telephone call referred to in the 7.20 message, Dr Essa said that Mr Osman should tell Mr Clymans that he had had the January JCT Contract but had lost it. Mr Osman says that this lays behind the exchange which follows. Dr Essa disagrees, contending that the exchange is consistent with the fact that there was no January JCT Contract, as (he says) had been minuted previously.

It appears to be agreed that on this day Dr Essa sent Mr Osman a JCT Contract. Dr Essa says that he had agreed a standard form contract based on the DB/Sub/A 2016 Design and Build Sub-Contract Agreement in February 2023 in relation to a project at London Road, Romford, RM7 9EL and that an electronic version of that contract, which was between another company he controlled and J&R Construction Group Limited (‘J&R’), had been e-mailed to him at 03:56pm on 2^nd February 2023 (‘the Romford Contract’).

Dr Essa says that he converted the Romford Contract into a Word version and saved it after amending it at around 13:13pm on 21^st June 2023. He changed various parts of the Romford Contract but not the Agreement Date of 1^st February 2023, or the 48-week time period for carrying out the works. He did not include the numbered documents as none existed for the 162 Willesden Lane project. Dr Essa states that he signed his own name and Mr Osman’s on the amended Romford Contract and e-mailed the first version to Mr Osman at 13:17pm. That version still contained J&R’s insurance details from the Romford Contract.

Mr Osman’s evidence is that

“Upon a closer review I noticed that the insurance provisions were incorrect, so I corrected these when I sent it back to Dr Essa. I did not review the insurance provisions of the Sub-Contract at the meeting on 26 January 2023 as at the time I was only concerned with the Sub-Contract Sum, scope of Works and time to completion. Dr Essa did not tell me about what he describes as the “Romford Contract” or that he was using this document as a template to create a new document. The signature page looks like mine. If Dr Essa is correct, it may be that Dr Essa took the original signed page from January 2023 and inserted into this new document. I do not know.”

The reference at the end is to Dr Essa’s evidence that it was he, Dr Essa, who signed Mr Osman’s signature on the document. In evidence that was put before the Court on this application, but not before the Adjudicator, WLP relied upon an analysis of the metadata by Mr William Wiggins of Cyfor Digital Evidence. WLP submit that his analysis supports WLP’s case, which is that the text of the JCT Sub-Contract forwarded by Dr Essa on 21^st June 2023 at 13.17pm was not created until 21^st June 2023 as a Word document. Dr Essa did not change the insurance details from those contained in the document in error in the version sent to Mr Osman at circa 13:17pm that day. On WLP’s case, this is said to establish that the sub-contract sent at 13:17pm on 21^st June 2023 cannot have been signed by Mr Osman on 26^th January 2023 as alleged by HTC. This is because the incorrect insurance details are from the Romford Contract attachment which was not created until 1^st February 2023 at 12:48pm and which Dr Essa did not receive until 2^nd February 2023.

In terms of Mr Osman’s signature, or purported signature, in evidence again not available in the Adjudication but produced in response to these enforcement proceedings, WLP rely upon the evidence of Paul Craddock (a report dated 27^th November 2025) and Ruth Myers (a report dated 24^th November 2025). WLP contend that the only examples of signature which features on the January JCT Contract are those documents Mr Osman has signed in these proceedings. The evidence suggests that Mr Osman has used an entirely different signature within the Statement of Truth in a Defence dated 6^th August 2025 (in a personal injury claim to which both WLP and HTC are parties).

Following the provision of the disputed JCT document, both parties refer in evidence to an email from Mr Osman to Mr Clymans on 21 June 2023 stating: ‘Please see attached the tender that was submitted in August 2022, the JCT contract signed for the purposes, which can be reviewed/amended if needed, and the proposal letter which the information on the site progress up to date’. The ‘JCT contract signed for the purposes’ is what HTC rely upon as the January JCT Contract. The ‘proposal letter’ appears to be a letter dated 20 June from HTC to Mr Clymans stating, ‘I am writing to you with the project proposal for your consideration. The current tender documents submitted to Dr Abbas in August 2022 is enclosed for easy reference.’

There was then an exchange dated 1 August 2023, which again both sides consider support their case. In the event, the sale to Hestia did not go ahead. Dr Essa’s evidence is that the document provided in June had only been signed for funding purposes and that Mr Osman was fully aware of this.

WLP rely upon the provision by Mr Osman of a tender document “for the job at 162 Willesden Lane” which was “solely for the RC Frameonly”. The attached tender was headed “Project 0422” and stated to be a Schedule of Works for “New Build of RC frame from only basement to floor be Roof level as per plans provided”. The estimated completion time was 30 weeks and the tender sum was £1,282,573.87.

A draft JCT contract for the reinforced concrete frame forwarded on 26 October 2024 utilising utilised the JCT SBC/XQ 2024 Standard Building Contract Without Quantities 2024. The covering email from Mr Osman said, ‘Please find attached the JCT for RC frame at 162 Willesdone Lan NW6. The works for this stage have been completed and the balance remains outstanding. Kindly review the JCT and see you tomorrow to get it signed along with the 90 Abbey Wood contract.’ This document was never signed.

On 11January 2024, Mr Osman e-mailed Dr Essa in relation to the RC frame, stating that further to a conversation and previous agreement the cost of £1,250,000 would include only the RC frame, and “I will not be doing any walls or timber roof”. Mr Osman requested Dr Essa to confirm this so that the parties could move forward. Dr Essa’s evidence is that he agreed to this price and scope of works and this became the RC Frame Contract. That contract excluded items such as the walls and timber roof as stated in Mr Osman’s 11 January 2024 e-mail, although those items had been included in the scope of what is relied upon as the January JCT Contract.

Mr Osman’s evidence is that the existence of these documents is explained by the fact that (notwithstanding the existing, binding January JCT Contract for all the works) he was asked to split the January 2023 Sub-Contract into two parts and forwarded this document as part of this process.

WLP point to High Tech’s invoice numbered AFP2 was forwarded on 21 July 2025. It refers to the RC frame works and a project start date of 28.10.23 and completion date of 26.07.24 and the sum invoiced is £1,450,000. The contract value was said to be £1,747,941.99. The invoice which was adjudicated upon was AFP 3 for the far higher sum of £2,142,623.25, which did not include any specific explanation for the increase in invoice (over a period when no further work had been undertaken).

It is not for me on this application to make any determination of the truth of these competing arguments. However I make the following observations:

On a review of the material placed before the Court on this application, excluding the further and largely responsive evidence sought to be adduced very shortly before the hearing by WLP, there is, as Mr Bowling accepts, a ‘real prospect of success’ that, upon a hearing of the merits of the dispute about contract formation, WLP will demonstrate not only that its analysis is correct but that, as a result, the foundational basis upon which not only the adjudication, but also therefore the freezing order and the resistance to this application for enforcement, has involved fraudulent reliance on the part of Mr Osman on a document he knows does not represent the true agreement between the parties.

There is, unsurprisingly, no dispute about the test on summary judgment.

In the context of the arguments advanced by Mr Bowling, it is necessary to acknowledge that the Court will grant summary judgment if it is clear that, even were a party were to succeed in proving all of the disputed facts it offers to prove, doing so would not entitle it to relief (Three Rivers DC v Governor & Company of the Bank of England (No. 3) [2003] 2 AC 1per Lord Hope of Craighead at [95]).

Thus, Mr Bowling’s case is that the debate about the contract or contracts under which the works were carried out is irrelevant to the Adjudicators’ valid jurisdiction and that, as such, even if WLP succeeded in establishing that the correct contracts were the Enabling Works Contract and the RC Frame Contract, the jurisdictional question (upon which enforcement of the Decision turns) would be answered in the same way.

In Carillion Construction v Devonport Royal Dockyard [2005] BLR 310Jackson LJ said, at [80]:

“1.

The adjudication procedure does not involve the final determination of anybody's rights (unless all parties so wish).

2.

The Court of Appeal has repeatedly emphasised that adjudicator's decisions must be enforced, even if they result from errors of procedure, fact or law; …

3.

Where an adjudicator has acted in excess of his jurisdiction or in serious breach of the rules of natural justice, the court will not enforce his decision: …

4.

Judges must be astute to examine technical defences with a degree of scepticism consonant with the policy of the 1996 Act. Errors of law, fact or procedure by an adjudicator must be examined critically before the court accepts that such errors constitute excessive jurisdiction or serious breaches of the rules of natural justice …”

The law is summarised at section 7.10 of Coulson on Construction Adjudication (4^th), as follows:

This principle is relevant to both the ways in which WLP argue that the Decision is unenforceable.

WLP contends that the Adjudicator’s determination as to the existence of the January JCT Contract (and the rejection of WLP’s case in this regard) was jurisdictional and as such was not binding on the parties. HTC contends that the Adjudicator would have had jurisdiction to decide the substantive payment dispute irrespective of whether the foundational contract was the January JCT Contract or as the Enabling Works Contract and/or RC Frame Contract, and was validly appointed by RICS (required on one contractual basis; permissible under the other). As such it is argued that the question of contract formation did not impact the Adjudicator’s jurisdiction.

This issue lies at the heart of the dispute arising from the first basis of enforcement challenge.

The leading Court of Appeal authority directed to this issue isPegram Shopfitters v Tally Weijl (UK) Ltd [2004] 1 WLR 2082.

In that case the claimant contended that the contract between the parties had been formed on its own standard terms and conditions which contained no adjudication provisions so that the Scheme applied. The defendant contended that the contract had been entered into on a JCT standard form, so that the JCT adjudication provisions applied with a specific nomination process and adjudication rules, or in the alternative that there was no contract at all. Summary judgment was awarded at first instance, but the Court of Appeal held that both contentions were properly arguable and that hence summary judgment should not have been awarded. At paragraph 32 May LJ, who gave the leading judgment, stated as follows:

“[Counsel’s] submission however, overlooks the fact that the only circumstance in which the adjudicator would clearly have had jurisdiction was if the claimant’s contentions as to the contractual terms were correct. The fact that adjudication under the Scheme and adjudication under a JCT Prime Cost Contract would be similar procedures does not overcome the twin difficulties that Mr Morris was appointed under the Scheme, and that a sufficiently secure identification of the contractual terms was necessary to the proper performance of his adjudication task”.

The analysis contained in Coulson on Construction Adjudication (4th Edition OUP 2018) in relation to Pegram is as follows: (Footnote: ¹)

“Accordingly, the position appears to be that, where the adjudicator is offered two conflicting sets of contract conditions, each of which comprised a construction contract in writing with either an express or implied series of adjudication provisions, his choice of one set of conditions over the other will usually be regarded by the court as part and parcel of his answer to the question that he had jurisdiction to answer, and will therefore not invalidate his decision. If, on the other hand, the adjudicator is given a choice between a contractual situation that would give him jurisdiction, and a contractual situation that would not, then the adjudicator’s investigation and ruling on that point is not determinative, and can be reviewed subsequently by the courts. Moreover if, on that review, the court came to the conclusion that the argument in support of the contractual position that would deprive the adjudicator of jurisdiction was not fanciful but instead had a reasonable prospect of success, then the adjudicator’s decision would not be summarily enforced.”

This analysis focuses on the first of the twin difficulties identified by May LJ: the fact that different contractual routes may provide different procedural routes to establishing jurisdiction. However, this was just one of two difficulties faced by the claimant in Pegram. The second was that, by commencing adjudication on the basis of a foundational contract which it was reasonably arguable was wrong (indeed, May LJ though it was the least likely), the claimant had failed to provide a ‘sufficiently secure identification of the contractual terms…necessary to the proper performance of [the Adjudicator’s] adjudication task’

In respect of the second of the stated twin difficulties, Mr Bowling submitted that this was no longer good law. The basis for this submission was limited to a general reference to the age of the case,the fact that in the meantime s107 of the HGCRA 1996 has been repealed so that it is no longer a requirement that all of the terms of the contract, including any agreed adjudication regime, must be made in writing, and the reasoning of the Court of Appeal cases such as Carillion and others in which it has been emphasised that adjudicator's decisions must be enforced, even if they result from errors of procedure, fact or law. This cannot be right. No Supreme Court or Court of Appeal decision has come close to casting doubt on either the outcome or reasoning in Pegram quoted above. Carillion does no more than emphasise that which May LJ himself recognised at [33] of Pegram, that ‘the court should be vigilant to examine arguments of this kind critically. If they are insubstantial and advanced for tactical reasons, the court will not be deterred from giving summary judgment where this is appropriate’. The reasoning was not (implicitly or otherwise) dependent upon or applicable only to the original requirements of the HGCRA 1996 as regards a contract in writing. I also note that Pegram is a case referred to throughout the leading text, Coulson on Construction Adjudication (4^th Edn), without any suggestion that part of May LJ’s judgment is wrong or open to question. Mr Bowling also relied upon Stuart-Smith J’s decisions in Purton (t/as Richwood Interiors) v Kilker Projects [2015] EWHC 2642 (TCC) and RMP Construction Services v Chalcroft [2016] BLR 134, which makes no reference to the second limb of the twin difficulties. I consider these decisions further below; but on any view, they could not have had the effect of altering the binding nature of Pegram on this Court.

The next decision of relevance is that of Air Design (Kent) Limited v Deerglen (Jersey) Limited [2008] EWHC 3047 (TCC). This was a case in which there was an originating contract based on the JCT Intermediate Form (the Basebuild Contract) pursuant to which both parties accepted the adjudicator could have been validly appointed. A notice of adjudication which sought to refer a dispute arising out of that single originating or Basebuild Contract would have been enforceable, but the defendant argued that disputes had also been referred pursuant to two further separate contracts, known as the “CPA Works” and “BMS Works”, and a further Supplemental Agreement. The adjudicator determined this was incorrect and that the Basebuild Contract had been varied by the three other agreements.

Akenhead J agreed with the adjudicator at paragraph [21], and also stated as follows at paragraphs [22]-[23]:

“22.

However there are two further factors which effectively override considerations as to whether or not there were one, two, three or four contracts between the parties which establish that the Adjudicator was acting within his proper jurisdiction:

(a)

The substantive decision making process upon which the Adjudicator had to embark in relation to the disputed claim put before him necessarily involved a consideration of whether there was more than one contract. It was thus within his jurisdiction to decide in effect that there was one contract, albeit one that may have been varied by agreement.

(b)

It was thus part of his jurisdiction to decide whether or not and if so to what extent the Basebuild Contract had been varied by the CPA and BMS Arrangements and indeed whether there were any further variations ordered to the Basebuild Contract. There may be cases, and this is clearly one, where substance and jurisdiction overlap so that it is within the Adjudicator’s jurisdiction to decide as matters within his or her substantive jurisdiction whether there have been in effect variations to the contract pursuant to which he or she has properly been appointed Adjudicator. It cannot then in those circumstances be a valid challenge to his or her jurisdiction that upon analysis he or she may be wrong as a matter of fact or law in determining that such variations were made to the originating contract as opposed to a series of later legally unconnected contracts.

(c)

The Supplementary Agreement is one which recognises in a way which has contractual effect that the parties were treating their contractual relationship as being in one “main contract”. The total of the three sums agreed originally to be due with regard to the Basebuild, CPA and BMS Works are said to be a “contract sum”; the variations are being treated as a single variation list to be addressed; maintenance and defects liability obligations are being treated as arising in effect under a unified obligation. It is this one “main contract” which is effectively being varied. Thus, whatever the arrangement or arrangements contractually were before, as from the Supplementary Agreement the parties clearly agreed to treat their contractual relationship as stemming from one contract.

23.

I have therefore formed the view that the Adjudicator did have jurisdiction to rule on all the matters which he did in his Decision. Whether he was right or wrong to find or make the assumption that there was effectively one contract which was varied and whether he was right or wrong to as a matter of fact or law in any other part of his decision is immaterial. Any such errors do not mean that he does not have jurisdiction. Even if I was wrong about that conclusion, then my analysis that effectively the CPA and BMS Arrangements and the Supplementary Agreement were simply variations of the Basebuild Contract would apply.”

Mr Pliener KC submits that Air Design is authority for the proposition that where the parties are in agreement as to the existence of a single originating contract which contains an adjudication clause, any question in relation to whether those subsequent agreements between the parties are variations to the originating contract can be considered as substantive rather than jurisdictional matters. Mr Pliener KC relies upon the case in circumstances where he contends that there is no agreement as to the single originating contract from which jurisdiction could spring and, if WLP is correct on the facts, the foundational contract under which the adjudication was brought did not exist.

Mr Bowling also submits, albeit in slightly different terms, that Air Design establishes that once there is “founding” jurisdiction under a construction contract, disputes about terms and scope are simply issues of fact and law within the Adjudicator’s jurisdiction. Mr Bowling relies upon Air Design in circumstances where he paints the dispute as a debate about terms and scope, at least in circumstances where the alternative founding contract(s) relied upon by WLP were themselves capable of giving the Adjudicator jurisdiction. Putting the point another way, Mr Bowling argues that permission to defend leading to a trial to decide what the contract was will always reach a conclusion that, whatever else, there was a “construction contract” providing for adjudication under the Scheme giving the present Adjudicator jurisdiction. Any dispute about contract formation does not, he says, therefore undermine jurisdiction. However, it is his qualification (that either outcome leads to jurisdiction) which underpins Mr Bowling’s argument. This is demonstrated by his acceptance that if (for example), there had been a material difference in the adjudication procedure required by the January JCT Contract and by the Enabling Works or RC Frame Contracts, then the dispute which existed as to the underlying contract would be a jurisdictional one in respect of which the Adjudicator had no power to bind the parties.

Air Design was considered in the subsequent decision of the same judge in Camillin Denny v. Adelaide Jones [2009] EWHC 2110 (TCC), in which at paragraph [30] of the judgment Akenhead J observed:

“That [Air Design] was a case in which there could be no doubt that the adjudicator was properly appointed under the first contract and there could be no argument that, in that capacity, he had jurisdiction to decide whether later “contracts” were simply variations of the first contract or stood on their own entirely separately as contracts in their own right. I am not convinced that this case is authority for any proposition other than that there may be cases in which adjudicators properly appointed have jurisdiction to resolve jurisdictional issues if and to the extent coincidentally those issues are part of the substantive dispute referred to adjudication”.

The words ‘properly appointed’ in the foregoing passage are key. Similar language was used by Akenhead J in a yet further decision on the same topic the following year. In Superblast v. Story Rail [2010] BLR 211 TCC he said:

As Mr Pliener KC emphasised, I accept that the outcome in each of these cases was dependent upon the existence of a foundational contract pursuant to which the Adjudicator was ‘properly appointed’ to give rise to the jurisdiction to determine the substantive dispute about whether other work was a variation or a separate agreement.

In Viridis UK Limited v Mulalley and Company Limited [2014] EWHC 268 (TCC), the claimant's position was that all of the sub-contract works were ordered under one order, known as order 24, dated 21 April 2011, and that the other orders were either works orders issued under that overarching order or alternatively were orders simply varying the original order. By contrast, the defendant's position was that order 24 was never accepted by the claimant and all works were undertaken under those other orders, each amounting to separate contracts, one issued before order 24 and the others issued after it. HHJ Davies, sitting as a Judge of the High Court, rejected the claimant’s case, concluding that order 24 was not accepted by the claimant and that it undertook the substantive works under and by reference to the contracts formed by its acceptance of order numbers 51, 62 and 77. As a result of this, HHJ Davies decided that the adjudicator had no jurisdiction to decide disputes arising under three separate contracts, each with different terms and subject matter, including – in the case of order 77 – differing adjudication procedures, so that the claimant was unable to enforce the adjudicator's decision. The claimant argued, in the alternative, that nonetheless the adjudicator did have jurisdiction to decide whether or not the dispute referred to the adjudicator arose under one contract or more contracts, as part of his substantive jurisdiction by reference to order 24, so that even if he was wrong on that point nonetheless his decision should be enforced. It was submitted (see paragraph [71]) that where the parties were agreed that either the parties contracted on the terms of order 24 or on the terms of the other orders, and where each order contained a valid adjudication clause containing the same appointment procedure, and substantially the same adjudication provisions, the same analysis applied as that adopted by Akenhead J in Air Design. Indeed, whilst Order 77 had a different adjudication procedure, Orders 51 and 62 had exactly identical adjudication provisions as Order 24. At [75] it can be seen that the defendant relied on the differing adjudication procedures to argue that (notwithstanding the same appointment procedure which ever order or orders governed) this was a jurisdictional matter; this was only true for one of the three other Orders.

HHJ Davies accepted the submission made before him, echoed by Mr Pliener KC before me, that Air Design is authority only for the proposition that where an adjudicator is properly appointed under a contract about which there is or can be no dispute, then he may also have jurisdiction to resolve jurisdictional issues if they are coincidentally part of the substantive dispute referred to him (see [80]). HHJ Davies then concluded:

Viridis was followed in Cubex (UK) Ltd v Balfour Beatty Group [2021] EWHC 3445 (TCC). In that case the adjudicator had found a contract that was not contended for by either of the parties. The application for summary judgment was refused on the grounds that the Defendant had a real prospect of successfully defending the claim on the basis that the contract found by the Adjudicator never came into existence. Having referenced Air Design, and quoted paragraphs [80] and [81] from Viridis, Simon Lofthouse KC, sitting as a Deputy High Court Judge, stated:

“20.

The difficulty in this case is that the Adjudicator is said not to have been appointed under a contract about which there is or can be no dispute.

21.

The Adjudicator addresses this objection which was also advanced before him by Balfour Beatty. He concluded that on the basis that there is a construction contract "the gate is open to adjudicate the ambit of the contract". That would be correct if, as noted by HHJ Davis, the Adjudicator was properly appointed under a contract about which there is or can be no dispute.

…

25.

It follows that I consider the Defendant has a real prospect of successfully defending the claim on the basis that the contract found by the Adjudicator never came into existence and that he was not properly appointed under a contract about which there is or can be no dispute.”

In Twintec Ltd v Volkerfitzpatrick Ltd [2014] EWHC 10 (TCC), Volkerfitzpatrick referred an adjudication pursuant to a clause in a DOM/2 contract, requiring referral through RICS, which is what took place. The Court found that the agreement between the parties was in fact governed by a free-standing letter of intent contract which did not import the DOM/2 adjudication clause. Volkerfitzpatrick argued that this was irrelevant because RICS would have been the nominating authority under the Scheme in any event. Edwards Stuart J did not agree, citing Pegram:

“58.

Mr Reed submits that it makes no difference because the nominating authority who purported to nominate the adjudicator, the President of the RICS, would have been the nominating authority under the Scheme (the Parties not having made any other agreement about the appointment of an adjudicator). In these circumstances Mr Reed submits that Twintec is seeking to promote form over substance and that its position is entirely artificial. Whilst, at a practical level, I have some sympathy with this submission, I cannot accept it because the validity of the procedure by which the adjudicator was nominated goes to the heart of his jurisdiction.

59.

In support of this last point, Twintec relies on a decision of the Court of Appeal in [Pegram]. …

60.

In my view it is clear from the passage [in which May LJ said ‘the only circumstance in which the adjudicator would clearly have had jurisdiction was if the claimant’s contentions as to the contractual terms were correct’] May LJ took the view that unless the adjudicator was appointed under the correct contractual provisions, his appointment would be a nullity. With this I respectfully agree. The jurisdiction of the adjudicator derives from the agreement of the parties, as reflected by the terms of the contract they have entered into. An adjudicator cannot be validly appointed under a contractual provision that does not in fact exist. He or she would have no jurisdiction to take up appointment and, in consequence, any decision that he or she might make would not be capable of enforcement.”

Mr Bowling argues that, in the present case, if HTC is correct as to the foundational contract, the appointment was under the Scheme pursuant to its express incorporation by Clause 8 of that Contract; and if WLP is right, the appointment was under the Scheme pursuant to terms implied into the Enabling Works and RC Frame Contracts pursuant to Section 108 of the HCRCA 1996. He submits that Edwards Stuart J’s reasoning has no application where the adjudicator’s appointment is in fact valid under either or both modes of contract formation that might be adopted by the trial if permission to defend were given. However, the fact remains that, as in Twintec, if WLP is right, the Adjudicator was appointed under a contractual provision which did not in fact exist.

Mr Bowling places most reliance upon the decisions of Stuart Smith J (as he then was) in Purton and Chalcroft.

In Purton, the primary position of the defending party was that, contrary to the claimant’s case that there was a contract for a joinery package entered into on or about the week commencing 9 June 2014, there was no contract at all. That case was rejected. In the alternative, counsel for the defendant argued his submission was that if any element of the contract alleged by Mr Purton was not established to the summary judgment standard of certainty, then judgment should be denied. Thus, he submitted, if the Court were certain that a contract was concluded generally as alleged but (a) it was not concluded “on or about” 9 June 2014 or (b) it was not concluded for the specific scope of works now alleged, or (c) it was not concluded for the sum of £350,000 (e.g. because it was on a quantum meruit basis), or (d) it was concluded with any combination of the features outlined at (a) to (c), then the referral to adjudication was impermissible, the adjudicator did not have jurisdiction and the Court should not entertain the application for summary judgment.

Stuart-Smith J observed that it is necessary first to distinguish between a case where a contract is relied upon but is incorrectly identified in one or more particular respects, and a case where it can be said that the contract relied upon never existed or that the dispute being referred did not arise under the contract relied upon. He continued at [23]:

“It is necessary first to distinguish between a case where a contract is relied upon but is incorrectly identified in one or more particular respects, and a case where it can be said that the contract relied upon never existed or that the dispute being referred did not arise under the contract relied upon….an approach which deprived adjudicators of jurisdiction where a dispute has been referred that has arisen under a construction contract because of any error in its characterisation, would as a matter of legal policy be unacceptable.”

The judge dealt with the position where no contract at all exists, and unsurprisingly concluded that in this situation, there would be no jurisdiction. He then identified at [24] an intermediate position:

“There is, however, an intermediate position between there being no contract at all and there being a contract which is alleged but mis-described in some respect or respects by the Claimant, so that it can be said that the contract as described is not the contract under which the dispute arose but is (or would be) another contract altogether.”

The judge then considered the position through a slightly different lens to that presently being argued, namely approbation and reprobation, but his conclusion at [28] remained potentially relevant. At [28] and [32] he concluded:

“At least in a case where there can be no doubt that the adjudicator, if properly informed, should and would have concluded that he had jurisdiction and the proper basis of jurisdiction does not make a difference to the substantive outcome, the Court should not shut out a Claimant who comes to the court to enforce the adjudicator’s decision. There are two reasons for this conclusion, one based on principle and one on pragmatism. In principle, if the adjudicator as a matter of fact had jurisdiction and came to an unimpeachable substantive conclusion which is not affected by the correctly-understood route to jurisdiction, the Claimant has not secured a benefit by his choice of the wrong route to that end since the outcome is unaffected. One of the pre-requisites identified by Lord Evershed MR is therefore lacking. The pragmatic reason is that to hold otherwise would encourage the taking of points which, while technically fascinating, are entirely lacking in merit and inimical to the spirit of the adjudication scheme as a whole….

Therefore, whether the contract was precisely in the terms alleged by Mr Purton or differed from it in one or more respects, the basis of jurisdiction does not affect the applicability of the Scheme or the substantive outcome. That being so, in my judgment, no question of approbation and reprobation arises. I recognise that there could be a case where the choice of route to jurisdiction might affect the rules that applied to the adjudication or the choice of adjudicator. That is not this case and I do not comment on or prejudge what the correct result would be if such a case arose.”

Again, each counsel rely upon this case to support their respective positions. Mr Bowling says that, here, the basis of jurisdiction (either the January JCT Contract on one hand and the Enabling Works Contract and/or RC Frame Contract on the other) is not relevant where the Scheme applied in both cases (either pursuant to an express clause or a implied one). Mr Pliener KC emphasises that the case demonstrates the requirement for the identification of a the foundational contract (even if there is a dispute about its precise terms), and contends that the present situation is one where -contrary to the second of the two requirements set out by Stuart-Smith J in the second sentence of paragraph [28] - the difference between the parties as to the proper basis of jurisdiction does make a significant difference to the substantive outcome. Mr Bowling, rather than contending that this was not the case, argued that the proper approach to the overlap between jurisdictional and substantive issues came to be clarified further in the second of Stuart-Smith J’s two cases dealing with these issues.

In Chalcroft, RMP contended the Contract was formed by an email sent to RMP by Chalcroft on 5 December 2014 at 16.45, which accepted an offer made by RMP. Chalcroft maintained the Contract was formed either (a) by a Letter of Intent on 8 December 2014, or (b) by the Letter of Intent taken together with a subsequent exchange of emails on 18 December 2014, or (c) by the placing and subsequent acceptance of a subcontract order on 13 April 2015. The parties agreed that by whichever of the above options the Contract was formed, the Scheme for Construction Contracts applied and no adjudicator nominating body was specified by the parties.

Stuart-Smith J distinguished Pegram on the basis that on any contractual route being proposed by either party the Adjudicator had jurisdiction and was to be appointed under the Scheme. At [51] – [53] he said:

“51.

It may be linguistically and even technically correct to describe Chalcroft’s various alternative formulations as different contracts from the contract alleged by RMP. But that difference should not, in my view, be determinative when it is remembered that the court is concerned with one contracting process, with the only question being which party has correctly identified where in that process the relevantly binding contract was formed….

52.

I would therefore, hold that the Adjudicator had jurisdiction because, however the contractual arrangements between the parties are correctly to be described, they mandated the use of the Scheme and he was properly appointed by the Scheme’s procedure.

53.

In reaching this conclusion I do not ignore the possible difference in substantive outcome that could arise from identifying the contract correctly. But it seems to me to be consistent with the legal policy and authority that I have summarised above to treat these substantive differences as going not to jurisdiction but to substantive outcome only. Once that approach is adopted, the present case is to be treated as one where the Adjudicator had jurisdiction to resolve the dispute that was referred to him (namely, how much was owing under interim application number 8) and addressed the correct question without bias, breach of natural justice or any other vice that would justify overturning his decision. If, which cannot be resolved now, he has made an error of law in referring to the wrong contractual provisions when deciding the substantive question that was referred to him, that falls within the category of errors of procedure, fact or law which the Court of Appeal has repeatedly emphasised should not prevent enforcement.”

It is not necessarily easy to reconcile the view expressed in paragraph [53] with the requirement, stated previously in Purton, that the debate about the proper basis of jurisdiction should not be one that made a difference to the substantive outcome. It might also be that the reasoning does not fully reflect the second of the ‘twin’ difficulties which befell the claimant in Pegram (that there was not a sufficiently secure identification of the contractual terms as was necessary for the proper performance of his adjudication task). Whilst Stuart-Smith J was obviously correct to distinguish Chalcroft from Pegram in relation to the first of those twin reasons (that the Adjudicator had been appointed under the Scheme when the true foundational contract imposed a different procedural scheme), for my part I would respectfully disagree with the apparent suggestion that the ratio of Pegram was restricted to that point (if that is what Stuart-Smith J intended in the last sentence of [49]). The use of the word ‘twin’ does not suggest that May LJ intended primacy of one of the two difficulties over the other. That said, I do not (and do not need to) disagree with the decision itself. As is clear from paragraph [51], Chalcroft was a case in which there was a single contracting process, with the debate being the point at which the relevant contract was formed. Seen through this lens, Stuart-Smith J’s characterisation of the claimant’s position (if the defendant was right on the facts) as one of ‘misdescription’ rather than existential was justifiable on the facts.

Stuart-Smith J’s approach in these two cases is described as ‘pragmatic’ by the editor of Coulson on Construction Adjudication (4^th Edn) at 7.65, in which he similarly labels the decisions of Fraser J (as he was then) in Science and Technology Facilities Council v MW High Tech Projects UK Ltd [2015] EWHC 2889 (TCC) and Ground Developments Ltd v FCC Construccion SA & Ors [2016] EWHC 1946. I note, however, having done so, the editor observes that pragmatism notwithstanding, ‘ultimately, the identification of an appropriate construction contract is required in order that the adjudicator has the necessary jurisdiction’. I respectfully agree.

From the foregoing, I distil the following principles:

The present case falls on the ‘existential’ side of the line. If WLP is correct, the contract pursuant to which the Adjudicator was appointed simply did not exist. The claim as advanced was a simple payment claim under that contract, and the question as to whether such contract existed at all was raised squarely as a question of jurisdiction. The adjudicator decided it accordingly. The Adjudicator, however, did not have jurisdiction to temporarily bind the parties to his conclusion in this foundational question. Although not determinative, I note that the Adjudicator himself determined that had he concluded that the foundational agreement pursuant to which he had been appointed had been “fabricated, altered or misrepresented” in a manner which amounted to fraud, this could lead to it being void and that this would have acted to deprive him of jurisdiction.

There is, therefore, a real prospect that (if WLP establish its contentions at trial), in the words of May LJ, the Adjudicator had not sufficiently secured the identification of the contractual terms necessary to the proper performance of his adjudication task. In such circumstances there can, in my judgment, be no question of the court concluding that his answer on that question should, even if wrong, nonetheless be temporarily binding on the defendant, who never agreed to confer jurisdiction upon him to decide that question.

It is necessary to deal with one further point raised by Mr Bowling: whilst WLP disputed the existence of the January JCT Contract, it is fair to say that it is only upon enforcement that it has advanced what it says is its alternative contractual framework was – namely two contracts, the Enabling Works Contract and the RC Frame Contract. This position, to a degree, echoes the criticism of the defendant in Ground Developments, who remained, as described by Fraser J, in front of the adjudicator and (albeit to a lesser extent) the Court ‘extraordinarily hesitant, if not outright reluctant, to commit itself to any positive statement of what contractual arrangements were agreed.’ Fraser J commented that the defendant was entitled to adopt that course, but should not be permitted to avoid enforcement by stating that it wishes to put other evidence before the court now on contract formation, after it has lost the adjudication.

As a matter of analysis, the relevance of this criticism of WLP is whether it is, in effect, relying upon a new and different argument in respect of jurisdiction, which the authorities are clear is not permissible. Insofar as WLP contend (as Mr Pliener KC did at one point in oral submissions) that the adjudicator lacked jurisdiction because the correct contractual framework involves more than one construction contract, this would be a new argument, and cannot found a valid basis for arguing against enforcement. However, insofar as WLP’s case essentially rests on the non-existence of the January JCT Contract, this was a point squarely before the Adjudicator, and it has not waived its right to take the same point upon enforcement.

Therefore, there is a real prospect that WLP will at trial establish that the Adjudicator was appointed pursuant to a contract which did not exist. Even if both putative contractual arrangements required (expressly or implicitly) the Scheme adjudication procedure, this is no answer to the foundational question of jurisdiction on the facts of this case.

WLP’s second challenge to enforcement is that the Decision should be set aside for fraud.

Mr Bowling says that this line of argument is hopeless in light of the Court of Appeal’s decision in Speymill v Baskind [2010] BLR 257 approving the test proposed by Akenhead J in SG South v Kingshead Cirencester [2010] BLR 47:

“(a)

Fraud or deceit can be raised as a defence to adjudications provided that it is a real defence to whatever the claims are; obviously, it is open to parties in adjudication to argue that the other party’s witnesses are not credible by reason of fraudulent or dishonest behaviour.

(b)

If fraud is to be raised in an effort to avoid enforcement or to support an application to stay execution of the enforcement judgment, it must be supported by clear and unambiguous evidence and argument.

(c)

A distinction has to be made between fraudulent behaviour, acts or omissions which were or could have been raised as a defence in the adjudication and such behaviour, acts or omissions which neither were nor could reasonably have been raised but which emerge afterwards. In the former case, if the behaviour, acts or omissions are in effect adjudicated upon the decision without more is enforceable. In the latter case, it is possible that it can be raised but generally not in the former.”

This was also approved and re-stated by Coulson LJ in PBS Energos v Bester Generacion [2020] BLR 355.

Mr Pliener KC has two answers to this.

The first answer is that all the cases giving rise to the foregoing line of authority relate to cases in which fraud was in fact, or could and should, have been alleged within the adjudication as part of the substantive issue. Here, it is said that the fraud goes to a jurisdictional issue, and so the line of authority can be distinguished. This argument is itself predicated upon the foregoing analysis i.e. that the dispute raised by WLP on enforcement is a jurisdictional one. If this conclusion is correct, then the Adjudicator did not have jurisdiction to make a binding decision on jurisdiction, irrespective of the question of fraud. If this conclusion is (contrary to my findings) incorrect, then Mr Pliener KC’s basis for distinguishing the clear approach identified above falls away.

The second answer is that the foregoing line of authority is wrongly decided in light of the decision of the Supreme Court in Takhar v Gracefield Developments [2019] UKSC 13. This related to a dispute concerning the transfer of land, in which the defendants relied at trial upon an agreement between the parties which appeared to show the claimant’s signature. No allegations of fraud or forgery were made at trial. After the trial the claimant obtained expert evidence showing her signature had been transposed into the agreement from a different letter. The claimant sought to commence new proceedings to set aside the judgment on the basis that the signature relied on had been forged. The Defendant applied to strike out the claim on the grounds that the fraud could have been discovered using reasonable diligence so that the claim to set aside the original judgment for fraud was an abuse of process. The Supreme Court allowed the appeal from the Court of Appeal and held that there were no grounds to apply a reasonable diligence requirement in the test for setting aside a judgment for fraud.

In light of the findings I have made, it is not necessary for me to consider this point. I am, in any event, bound by Court of Appeal authorities (both Speymill and PBS) which are, unlike Takhar, directly on point in the context of adjudication. For what it is worth, I note that Takhar was cited in argument in PBS Energos albeit not referred to in the judgment.

In these circumstances, I do not consider that Mr Pliener KC’s second argument advances his case.

There was insufficient time for this issue to be argued orally. The issue was put over to a consequentials hearing post-judgment, if relevant. In light of my conclusions above, it is not.

For the reasons set out, the Claimant’s application summarily to enforce the Decision of the Adjudication is refused.