Paragon Group Limited v FK Facades Limited

This is an adjudication summary enforcement claim for the relatively modest principal amount of £80,500 plus reimbursement of the adjudicator’s fees. The sole issue is whether or not the claimant (Paragon) was legally entitled to refer its claim as assignee against the defendant contractor (FK) to adjudication. Paragon says that it had the right to do as the assignee of “all of [the employer’s] rights, title, interest and benefit in and to” a building contract, which was made between the original employer (the assignor) and FK. If Paragon was entitled to refer its claim as assignee, then the adjudicator appointed in this case had jurisdiction to determine the dispute and the defendant is bound by his decision unless and until the dispute is finally determined by a court or by agreement. If it was not, then the adjudicator had no jurisdiction and the defendant is not bound by his decision even on a temporary basis.

Surprisingly, it appears that there is no direct authority on the point, whether in relation to adjudication under the Housing Grants, Construction and Regeneration Act 1996 (the HGCRA) and Part 1 of the Scheme for Construction Contracts (the Scheme), or under the express terms of the contract, whether incorporating the Scheme or otherwise. The issue is not entirely straightforward and the arguments before me have necessarily proceeded from first principles. In such circumstances, I decided to reserve judgment to reflect on those arguments.

Having reflected, I have decided that Paragon’s submissions, as persuasively advanced by Mr Cheung, are to be preferred to FK’s submissions, as equally persuasively advanced by Mr Twivy, so that Paragon is entitled to summary judgment as sought.

My reasons appear in the following sections:

The contract in question was entered into on 17 Oct. 2018 in the JCT Minor Works Building Contract 2016 ed. standard form (MW 2016), as amended by the schedule of amendments attached to it.

Although not directly relevant to the narrow issue which arises in this case, it appears from the contract particulars and the specification that the works the subject matter of the agreement were remedial works to the roof installation at a commercial property in Ashton Moss, Greater Manchester, and that the contract was entered into as part of a settlement agreement of a pre-existing dispute in relation to the original works.

The contract identified “the Employer” as Office Depot International (UK) Limited (ODI) and “the Contractor” as FK. The terms Employer and Contractor are used throughout the contract, both in the Articles and in the Conditions.

In addition to these terms, elsewhere in the contract reference was also made to each as a “Party”. In particular, Art. 6 (Adjudication) stated: “If any dispute or difference arises under this Contract either Party may refer it to adjudication in accordance with clause 7.2” (emphasis added). Clause 7.2, headed “adjudication”, stated: “If a dispute or difference arises under this Contract which either Party wishes to refer to adjudication the Scheme shall apply, except for the purposes of the Scheme the Adjudicator shall be the person (if any) and the nominating body shall be that stated in the Contract Particulars”.

More generally, throughout the contract the term “the Parties” is used to refer to the employer and the contractor in the plural. The Party in the singular is used where it is not necessary to identify the individual party in question as either the employer or the contractor.

This is also consistent with the definitions section, where the “Parties” are defined as “the Employer and the Contractor together” and a “Party” is defined as “either the Employer or the Contractor”.

It follows that in Art. 6 and clause 7 the reference to “either Party” is shorthand for “either the Employer or the Contractor”.

The option in Art. 7 for Arbitration was not selected and, instead, Art. 8: Legal Proceedings, provided: “Subject to Article 6 … the English courts shall have jurisdiction over any dispute or difference between the Parties which arises out of or in connection with this Contract”.

Clause 3.1 in its unamended form provided that: “Neither the Employer nor the Contractor shall, without the consent of the other, assign this Contract or any rights thereunder”. This was amended by deletion and replaced as follows:

“1.

the Employer may assign or charge the benefit of this Contract at any time without the Contractor's consent;

2.

the Contractor shall not assign, novate or charge the benefit of this Contract without the Employer's prior written consent”.

Thus, there was no restriction on the employer’s right to assign, whereas there was a restriction in relation to the Contractor. The position of the Employer in relation to novation is left unresolved but, happily, that is not a matter which is of relevance to this dispute.

Given the narrow issue involved, there is no need to refer in any detail to subsequent events.

There were two assignments, one in 2021 from ODI to OT Group Ltd (OTG), and another in 2024 from OTG to Paragon, both in the terms identified in par. 1 above. Both assignments were notified to FK.

Paragon considered that FK was in culpable delay in completing the works. In April 2025 Paragon terminated the contract and in May 2025 it notified FK that it was liable for liquidated damages due to its culpable delay. This was disputed by FK and Paragon duly sought to refer the dispute to adjudication. FK took various jurisdictional points, of which that determined in this judgment is the only one now relied on. The adjudicator gave a non-binding ruling that he had jurisdiction and, having done so, duly proceeded with the adjudication and: (a) awarded Paragon the sum of £80,500; and (b) directed that FK should pay or reimburse his fees of £17,787. FK refused to do either, hence Paragon paid the adjudicator and brought this adjudication summary enforcement claim, which was issued on 17 Nov. 2025 and listed for 17 Dec. 25, when it was heard before me.

It is common ground that the test to be applied on a summary judgment application is whether or not the defence has a real prospect of success (or there is some other reason for the case to be determined at a trial), but it is also common ground that where – as here – the dispute raises a short self-contained point of law there is no reason why the court should not decide it at a summary judgment hearing.

It is well-established that the Technology and Construction Court adopts a robust approach to adjudication enforcement, as endorsed by the Court of Appeal in Carillion Construction Ltd v Devonport Royal Dockyard Ltd [2005] EWCA Civ 1358 on appeal from Mr Justice Rupert Jackson, as applied in many subsequent decisions at first instance and on appeal.

However where, as here, a substantial point of law as to jurisdiction is raised, the court must engage with it on its merits. This cannot simply be ignored as a defendant "simply scrabbling around to find some argument, however tenuous, to resist payment", as Chadwick LJ memorably described it in Carillion.

Mr Cheung referred me to Chitty on Contracts 36^th ed. pars. 23-001 & 004 for a concise explanation of what is meant by an assignment of things in action:

“Assignment refers to mechanisms by which the benefit of “things in action” or, as they are still called, choses in action, may pass from one party to another. The phrase “things in action” is used to describe “all personal rights of property which can only be claimed or enforced by action, and not by taking physical possession”. Contractual rights, being things in action as opposed to things in possession, were not assignable at common law … [but] General statutory provision for the assignment of choses in action was first made by s.25(6) of the Judicature Act 1873, which is now repealed and substantially re-enacted by s.136 of the Law of Property Act 1925”.

Section 136(1) provides as relevant that “Any absolute assignment by writing under the hand of the assignor … of any debt or other legal thing in action, of which express notice in writing has been given to the debtor … is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice — (a) the legal right to such debt or thing in action; (b) all legal and other remedies for the same …”.

As Mr Cheung emphasised, it follows that in the case of a statutory assignment (and it is not disputed that this was the case here) what was assigned was not only the legal right to the things in action but also all legal and other remedies for the same.

He also referred me to a decision of the Court of Appeal, given 15 years after the passing of the Judicature Act 1873, Read v Brown (1888) 22 QBD 128, where at p132 Lord Esher MR explained the effect of a statutory assignment as follows: “[…] the words mean what they say; they transfer the legal right to the debt as well as the legal remedies for its recovery. The debt is transferred to the assignee and becomes as though it had been his from the beginning; it is no longer to be the debt of the assignor at all, who cannot sue for it, the right to sue being taken from him; the assignee becomes the assignee of a legal debt and is not merely an assignee in equity, and the debt being his, he can sue for it, and sue in his own name. […]” (emphasis added).

A more recent overview of the legal principles in relation to assignment and novation respectively was provided by O’Farrell J in her preliminary issues judgment in Energy Works (Hull) Ltd v MW High Tech Projects UK Ltd & Ors [2020] EWHC 2537 (TCC) at pars. 56–62 and pars. 85-95.

A convenient summary for present purposes is that:

In relation to the fundamental principles of assignment, Mr Twivy also referred me to the decision of the Court of Appeal in Bexhill UK Ltd v Razzaq [2012] EWCA Civ 1376 where Aikens LJ, with whom the other members of the Court agreed, stated (emphasis added):

“44.

… it is important to recall the effect of an assignment of a right … The assignee becomes either the legal or beneficial owner of the thing in action and its benefits. [The assignee] does not become a party to any contract or deed which contains or gives rise to the right. The assignee will only become a party to the contract (or deed) if there is a novation …”

The provisions of the HGCRA and the Scheme.

As is well known, the right conferred by s.108 HGCRA to refer a dispute arising under a construction contract for adjudication under a procedure complying with this section is conferred on “a party” to that construction contract. The remainder of the relevant provisions of the HGCRA also refer to a “party” or the “parties”.

It is also well known that s.108 provides that: (a) the decision of the adjudicator is only binding “until the dispute is finally determined by legal proceedings, by arbitration … [if applicable] or by agreement”; (b) if the contract does not comply with the requirements of s.108 the adjudication provisions of the Scheme shall apply.

Under paragraph 1(1) of the Scheme “any party to a construction contract (the "referring party") may give written notice (the "notice of adjudication") at any time of his intention to refer any dispute arising under the contract, to adjudication” (emphasis added)

Under paragraph 1(2) “the notice of adjudication shall be given to every other party to the contract”.

Under paragraph 1(3) “the notice of adjudication shall set out briefly – (a) the nature and a brief description of the dispute and of the parties involved, … and (d) the names and addresses of the parties to the contract”.

Paragraph 2(1) envisages that the “parties to the dispute” may agree who shall act as adjudicator. The same expression is used in par. 4. In par. 5(2) reference is made to “the other party to the dispute” and in par. 7(3) reference is made to “every other party to the dispute”. These terms also appear in later paragraphs of the Scheme. In par. 8 reference to is made to “all the parties to those disputes” in the context of the adjudicator being empowered, with the consent of all such persons, to determine more than one dispute under the same contract. By par. 13(a), the adjudicator is empowered to: “request any party to the contract to supply him with such documents as he may reasonably require” and, by par. 13(c), to “meet and question any of the parties to the contract”.

It is well-established and not in dispute that the right of adjudication conferred in this case – and, indeed, in all adjudication cases, even where the right is imposed by the HGCRA in the absence of a compliant contractual provision - is one which is contractual in nature. Mr Cheung observes, correctly, that in this contract the right originates from Art. 6, summarised above, which imports the Scheme into the contract via clause 7.2.

It follows, and it is not in dispute, that the interpretation of the adjudication provisions in this contract is governed by the well-established principles applicable to the interpretation of contacts.

There is a conveniently succinct summary of the relevant principles to be found in the judgment of Birss LJ in Assia v BT [2023] EWCA Civ 451 at pars. 17-20, which I gratefully adopt and apply. As he stated, the court undertakes “a unitary process to ascertain what a reasonable person with all the background knowledge reasonably available to the parties at the time would have understood the parties to have meant” (par. 18).

As regards background knowledge, the position is summarised in The Interpretation of Contracts by Sir Kim Lewison 8th edition chapter 3 section 17 – Background – as follows:

“In construing any written agreement the court is entitled to look at evidence of the objective factual background known to the parties or reasonably available to them at or before the date of the contract. This principle applies even if the contract appears to be unambiguous. There is no conceptual limit to background. It can include anything relevant which would have affected the way in which the document would have been understood by a reasonable person. However, this does not entitle the court to look at evidence of the parties’ subjective intentions; nor to ascribe to the words of the contract a meaning that they cannot legitimately bear.”

As the author notes, this can include “the state of the law” (par. 3.152, referring to BCCI v Ali [2002] 1 A.C. 251) and the “general legal context will usually be relevant” (par. 3.153, referring to British Overseas Bank Nominees Ltd v Stewart Milne Group Ltd [2019] CSIH 47; [2020] P.N.L.R. 2).

Where Mr Cheung and Mr Twivy differ is in relation to the consequences of that common ground.

Mr Twivy, who went first, submitted that: (a) it is plain from the literal wording of the contract, of which the most important part was the incorporated provisions of the Scheme, that only a party to the construction contract can refer a dispute to adjudication; (b) it is plain from the clear words used in the Scheme, read with the analysis in Bexhill UK Ltd v Razzaq, which itself is simply a reflection of well-established principles, that an assignee does not become a party to the construction contract; (c) even if that was wrong, since the right to adjudicate only extends to disputes or differences arising “under the contract”, a dispute by an assignee is not a dispute arising under the contract, since it arises under the assignment; (d) insofar as is relevant, commercial commonsense supports this conclusion, when one considers the difficulties and complications which may arise from allowing a assignee to refer a dispute to adjudication.

Mr Cheung, who responded, submitted that a proper interpretation of the whole of the contract, most relevantly clause 7.2, when read with the definition of a party and clause 3.1 as amended, and when read with an understanding of the general law in relation to assignments, showed clearly that a party included any statutory assignee of the original employer or contractor who, thus, also had the right to refer disputes to adjudication. He submitted that it also followed that a dispute arising under the contract was plainly apt to include a claim arising under the contract even where referred by an assignee. He submitted that the difficulties and complications identified by Mr Twivy were, on analysis, insubstantial.

He also sought to place reliance on the position in relation to arbitration which, he submitted, supported his case, whereas Mr Twivy submitted that on analysis it did not in fact provide any such support.

Before addressing these arguments it is convenient to refer to such slim pickings as there are in relation to previous authority on the point.

It is not appropriate to devote too much time to an examination of these authorities, because both counsel accepted that none directly addressed the point at issue so that they were, at best, of marginal assistance.

The only judgment which directly discusses the particular point in issue is the earliest in time, that of Judge McCahill QC (sitting as a High Court Judge) in Westdawn Refurbishments Ltd v Roselodge Ltd (2006) (unrep). In that case the claimant, WRL, had adjudicated on the basis of an assignment from a company in liquidation. One of the arguments raised was that an assignee from an original party to a construction contract was not entitled to invoke the adjudication process. Because Judge McCahill decided the case on a different point, he made it clear that he did not need to and was not prepared to decide this further point, even on an obiter basis. He explained that “this really is too important an issue to be decided unnecessarily and without fuller citation of authority than has been possible in this case”.

The most that can be gained from this judgment is that Judge McCahill was prepared to acknowledge that the point was not obviously straightforward either way, a view which I share. I can also take note of the arguments for and against as summarised by him, those favourable to his case having been adopted by Mr Twivy in his submissions. However, it is obvious that he did not in fact express any decided view one way or another to which I can have regard. It is also worth noting that in his textbook on Construction Adjudication (4^th edition) Sir Peter Coulson refers (par. 7.66) to this decision without comment one way or the another on the point.

Indeed, it does not appear that the author has expressed any view on this point elsewhere in the current edition of his textbook. He did, however, whilst sitting as a High Court Judge give judgment in a case (Enterprise Managed Services Ltd v Tony McFadden Utilities Ltd [2009] EWHC 3222 (TCC)) which was relied upon by Mr Cheung, albeit only on the morning of the hearing as a result of a midnight wordsearch of the textbook. The facts and the arguments in that case were complex but, in summary, involved a claim made by an assignee of a company in liquidation for the balance due on the taking of an account under rule 4.90 of the Insolvency Rules 1986.

One of the arguments dealt with by Coulson J at pars. 49 and 50 was whether or not the assignment included with it the right to adjudicate the claim. Since the fact that the clause in question in the assignment expressly referred to that right as being assigned (see par. 40), the argument appears to have been ambitious, and there is no indication in the judgment that the anterior point (i.e. whether the right to adjudicate under the sub-contract in question could be assigned) was argued. Coulson J stated at par. 49: “Moreover, it seems to me that, as a matter of law, an assignment of a right to adjudicate can be legitimate, although such a right needs to be attached to the underlying contract: see, in the context of arbitration, South v. Chamberlayne [2001] 3 EGLR 54”. He continued as par. 50: “Thus, if the Deed of Assignment in the present case operated as an assignment of [the original sub-contractor’s] contractual claim against [the main contractor] under the [sub-contract], then I consider that the right to adjudicate that claim will also have been validly assigned and there is no difficulty under section 107 of the Act”.

Mr Twivy did not dispute that general principle. His submission was that it did not take matters further because, as indicated, his argument in this case is simply that on the facts of this case the underlying contract does not permit an assignment of the right to adjudicate.

I agree with Mr Twivy on this part of his submission. It appears to me that Coulson J’s conclusion was based solely on an analysis of the deed of assignment in that case, because no point was taken about - and indeed there was no reference to - the terms of the sub-contract the subject of the assignment insofar as they may have been relevant to the anterior question of assignability. It is simply not possible, therefore, in my judgment to treat this as a considered determination on the point which has been argued before me. The most that can be said is that – assuming that the contractual adjudication scheme in that case contained the same provisions as the Scheme - it may be that it did not occur to any of the parties to argue the point. It is neither possible nor appropriate to speculate about whether the same can be said in relation to Coulson J himself, or whether he simply did not consider it appropriate to raise the point of his own volition.

Much the same can be said about the decision of O’Farrell J in Mailbox (Birmingham) Ltd v Galliford Try Construction Ltd [2017] EWHC 67 (TCC), also relied upon by Mr Cheung. In that case the validity of the original assignment and a re-assignment were argued by the parties, but it was not argued by either party that the original assignment did not operate to assign the right to adjudicate in the first place. It follows that it cannot be said that O’Farrell J’s judgment can be read as an endorsement, express or implicit, that there was such a right. Again, the decision is noted by the author in Construction Adjudication at 7.69 without comment on this point.

I was also referred by both counsel to a recent decision by District Judge Baldwin, the Liverpool TCC District Judge, in Grove Construction (London) Ltd v Bagshot Manor Ltd [2025] EWHC 591 (TCC). However, neither submitted that the decision was of direct relevance. That is not surprising, since it was concerned with an attempt by an original contracting party to adjudicate against an assignee of the other which, as the authorities make clear, is not something which can be permitted without a novation. It is not surprising therefore that the adjudication enforcement claim failed.

Mr Twivy also referred me to the decision of Ramsey J in Hurley Palmer Flatt v Barclays Bank [2014] EWHC 3042 (TCC). In that case a third party (a company connected to, but separate from, the employer, who had been given certain rights as against the contractor under the agreement between the employer and the contractor) sought to adjudicate a claim against the contractor (referred to in the judgment as HPF). Although the factual situation was therefore very different to the case of an assignment, Mr Twivy relies on the analysis in par. 43 where Ramsey J stated:

“The Scheme which was incorporated in [by] clause 27 [of the contract] refers in paragraph 1(1) of Part I to a party to a construction contract being able to give written notice to refer disputes to adjudication. Barclays, the third party is not a party to a construction contract. Equally paragraph 1(2) states that the notice of adjudication should be given to every other party to the contract. It is evident both from those provisions of the Scheme and from the provisions of the appointment … that clause 27 is simply inapplicable to the relationship between Barclays, as third party and HPF”.

Although Mr Twivy accepted, rightly, that the decision was not directly relevant, since Barclays was a third party which was given rights under the contract in question (a professional appointment), he submits that nonetheless the principle identified was of general application and applies here. I am prepared to accept that it provides him with some support for his case but, on analysis, very little support in the context of the differences between that case and this. What is under consideration here is whether an assignee “stands in the shoes of” the assignor (that being an expression often used in the context of a legal assignee), which is completely different to the case under consideration by Ramsey J, where there was no such assignment.

Having concluded that ultimately somewhat unprofitable review of the authorities, I now return to what is the essential issue.

Mr Twivy’s argument has the undoubted benefit of simplicity. If the party is defined as “the employer” or “the contractor”, and if the Scheme gives the right to adjudicate to “any party to the construction contract”, then at first blush it is only the employer or the contractor who can refer a dispute to adjudication.

However, I was not convinced that the remaining references in the Scheme to a “party” or “parties” make clear beyond doubt that only the original parties to the construction contract can be parties who can adjudicate. In my judgment these references are essentially neutral and do not provide any further support for Mr Twivy’s case which, in my view, really stands or falls on par. 1(1) of the Scheme.

That is especially so in my view because of the references also made – without any obviously necessary distinction between them in the Scheme – to the “parties”, to the “parties to the contract” and to the “parties to the dispute”. It is not, therefore, immediately obvious that all such other references to a “party” are consciously intended to refer back solely to a “party to the construction contract”. If pars. 1(2) and 1(3) are read as also referring to the parties to the construction contract then, in the case of a multi-party contract, it would be necessary to give notice to every such party and to identify their names and addresses, notwithstanding that they would have no connection at all with the dispute in question unless it was a permitted multi-party dispute.

In my judgment this apparent indiscriminate approach to the use of the word “party” in the Scheme provides some support for Mr Cheung’s submission to the effect that the drafters did not have a conscious intention to differentiate between the position of an original contracting party and that of an assignee when referring to a “party to a construction contract”. It seems to me that the various references to “party” in the Scheme can perfectly easily be read as if they included in brackets “or any legal assignee of such party, where applicable” without doing violence to the wording of the Scheme.

Further, I accept Mr Cheung’s submission that in this case the primary operative contractual provision in relation to adjudication is Art. 6 which, when read with the relevant definition of party inserted, reads: “If any dispute or difference arises under this Contract the Employer or the Contractor may refer it to adjudication in accordance with clause 7.2”.

If one then asks who is the Employer and who is the Contractor, then whilst of course one sees that they are identified in the contract as ODI and FK respectively, that must in my judgment also be considered in the context of clause 3.1 as amended, which allows the benefit of the contract to be assigned by either party (albeit by the contractor only with employer consent).

One then has to ask oneself whether the reference to a party includes an assignee of the benefit of the contract by either the employer or the contractor. That question would need to be answered in accordance with an assumed knowledge of the general law of contract and assignment.

In my judgment that would include the following points: (a) in strict legal analysis, an assignee does not become a “party” to the contract in the full sense, because only someone who becomes a party through novation assumes the benefit and the burden of the contract and, thus, becomes a party to the contract for all purposes in replacement of the original party; (b) nonetheless, in strict legal analysis a statutory assignment of the benefit of a thing in action under a contract passes the legal right to the thing and all legal rights and other remedies for the same, which are transferred to the assignee as if they had been theirs from the beginning, and which would thus in my judgment – absent express provision to the contrary – include the right to adjudicate; (c) one might expect a permitted assignee to have all of the rights and remedies passing at law with the rights assigned unless or to the extent that such rights were excluded, expressly or by necessary implication.

In terms of the practical consequences of the rival interpretations, in my judgment the following points are material.

First, it is true, as Mr Twivy says, that there are some practical complications which would arise if an assignee can adjudicate against an original party.

Primarily, as he said, the other original party against whom the adjudication is brought could not bring a counterclaim against the assignee. However the apparent significance of this point is reduced, substantially in my view, by reason of the following further points: (a) first, the other original party could rely in defence upon all equities which it could have relied upon as against the assignor; (b) second, the general rule is that a respondent to an adjudication cannot bring a counterclaim against a referring party anyway; (c) thirdly, a similar limitation applies in litigation, although it is true that in litigation, if not usually in arbitration, the other original party could join the assignor as a Part 20 defendant.

Second, he said, the problem arises as to whether, and if so how and to what extent, findings made in an adjudication between an assignee and original party could be binding on the assignor. He gave an example derived from this case. If the adjudicator had decided that FK was entitled to a partial extension of time as part of its defence to the claim and FK had then sought to adjudicate a claim for loss and expense against the assignor based on that finding, would the second adjudicator be bound by it? He submitted that it would be unacceptable if that was not the position, because it would lead to duplication and the risk of inconsistent findings, but that it would appear to be the consequence of allowing an assignee to adjudicate.

In seeking to answer this point, Mr Cheung referred to par. 9(2) of the Scheme, under which “an adjudicator must resign where the dispute is the same or substantially the same as one which has previously been referred to adjudication, and a decision has been taken in that adjudication”. I accept that this may provide an answer, although my initial inclination is that this could only apply where the referring and the responding parties are the same in both adjudications, which would not be the case on the hypothesis under discussion.

However, I do not consider that this problem is really so significant as suggested by Mr Twivy. That is because any immediate injustice is cured by the fact that, in practice, an original contracting party in the position of FK could assert and rely upon such a claim as a defence to Paragon’s claim anyway, either on the basis that it is an equity to which Paragon takes the assignment subject, or by application of the principle of conditional benefit discussed by O’Farrell J in Outotec at pars. 89-95. Moreover, it would not prevent FK from issuing its own adjudication claim against the original contracting party anyway. Finally, since adjudication is intended to be a swift, adverse cost free, and only temporarily binding dispute resolution mechanism, it is not obviously a major problem if there is a risk of inconsistent findings as between different adjudicators, because any inconsistencies can be corrected by litigation in due course, which could involve assignor and assignee if necessary.

Furthermore, I suspect that this problem is more theoretical than real in the great majority of cases. If an original party assigns the benefit of the whole contract to an assignee then the original party is likely to insist on the assignee undertaking to indemnify them against any post-assignment liability and, frequently, on the assignee accepting an obligation to take over the conduct of any defence if required. In reality, therefore, if the assignee and the other original party were asserting claims and cross-claims against each other the assignee might well take a pragmatic view in relation to one adjudicator determining both disputes, rather than have to incur or indemnify the assignor against the cost and risk of two separate adjudications.

Finally, any prospective contracting party concerned about this risk can always stipulate for a no-assignment clause or a no-assignment without prior consent clause or, if it wished, a “no adjudication by an assignee” clause.

Thus, overall, I consider that this objection is more apparent than real.

Thirdly, however, Mr Twivy noted that adjudication is confidential (see par. 18 of the Scheme), so that there would also be a difficulty in it being shared by the assignee with the original party, let alone deployed against the other original party.

This would appear to be true, although it has not been investigated whether there would or may be exceptions to adjudication confidentiality in cases where there is a privity of relationship between the original contracting parties and their assigns, but in any event this does not seem to me to be a compelling reason in itself not to allow an assignee to adjudicate.

Further, as against all of these difficulties or perceived difficulties, must be set the difficulties which would arise if the only way an assignee could adjudicate a claim was by forcing or persuading the assignor to lend their name to an adjudication against the other original party. That is potentially fraught with difficulty and delay. I accept that it might be said that this is a risk which any assignee in the construction sector ought to be aware of and/or take steps to protect itself against, given that by s.136 LPA 1925 the assignee is given all legal remedies for the legal right to the thing in action. I accept that it might also be said that, since an assignee can always sue in court, this is no more a problem than if the original party had to sue the assignor in court. Nonetheless, in my opinion it would appear to have been unlikely that the parties would have envisaged that the rights of any assignees would be subject to such a significant limitation due only to what, I am satisfied, is an unintended drafting consequence of the Scheme.

In that regard, it is noteworthy that these difficulties can operate against both employer and contractor impartially. In other words, there is no obvious reason for thinking that either party, both of whom had by amendment to the contract been given the right (qualified or unqualified) to assign the contract, would have thought that there was any particular benefit to them in being able to prevent the assignee of the other party from adjudicating a claim against them. In short, I do not consider that commercial commonsense points in favour of the conclusion that assignees of the employer or the contractor should not be allowed to refer a dispute arising under the contract to adjudication.

In the end, although I must confess that I have found the point finely balanced, I am satisfied that on an objective interpretation of the contract in question an assignee can adjudicate an assigned claim against the original other party and, accordingly, that the adjudicator had jurisdiction to decide the dispute which was referred to him by Paragon. The contract and the Scheme can be read as if the words “or any legal assignee of such party, where applicable” are read into the definition of a party, in much the same way as they can be and are read into the definition of a contracting party where it is afforded remedies under a standard commercial contract where assignment is permitted.

I can address the two further points argued more shortly.

First, I do not consider that Mr Twivy’s alternative argument - that a claim by an assignee does not arise under the contract – has any freestanding merit. That is because, if the assignee is a party to the construction contract by virtue of the assignment, then it is obvious in my judgment that any claim which they bring in their capacity as assignee is a claim arising under the contract, because that is the only claim which they can advance in their capacity as assignee. It is irrelevant that the only reason that the assignee can refer the dispute to adjudication is because the contract has been validly assigned to them. That does not make the claim one arising under the assignment. By parity of reasoning, personal representatives of an estate would be unable to adjudicate a claim because their claim would not arise under the contract, yet such a proposition seems to me to be wholly unrealistic.

Second, and finally, for my part I do not gain any assistance from the arbitration cases, save that they confirm Mr Cheung’s basic proposition that the starting point, subject always to the particular terms of the contract, is that in accordance with s.136 LPA 1925 an assignee is entitled to – and indeed in arbitration is required to, if the other party insists – refer any claim arising under the contract to arbitration. Insofar as argued, I do not consider that the difference between a claim arising under the contract or a claim arising under or in connection with the contract has any relevance to the issues I am deciding.

For all of the above reasons I am satisfied that the Claimant is entitled to summary judgment as claimed.