Title TBC

14 Feb 2011

The Facts

The Claimant (C) firm of quantity surveyors was employed on a residential refurbishment project.  D purchased the relevant property for that purpose from an individual (T) who was a director of a construction project management company (Co).  The proposed terms of C’s engagement were set out in a letter from it to Co and a contract was formed between C and Co.  C’s first invoice was addressed only to Co but, upon Co’s request, it was re-issued to D ‘c/o’ Co marked for the attention of T.  The next four invoices were addressed in the same manner.  After those invoices had been provided, solicitors acting for D wrote to C enclosing a draft ‘appointment’ in the form of a letter to C which was to be executed and signed as a deed by both parties.  C sought a number of amendments to the terms of that draft appointment.  The invoices from that time onwards were again addressed to D ‘c/o’ Co.   The draft appointment was never executed.  Nearly three years after the project was completed, C wrote to D seeking payment of the balance of fees and raised an invoice for that sum.  No agreement having been reached, C served a Notice of Adjudication on D.  The Referral proceeded on the basis that Co acted as an agent of D with authority to negotiate the terms of the appointment and relied upon the fact that payments were in fact made by D.  Arguments were raised as to the variation of those terms and estoppel.  In the adjudication one of the points argued by D was that the Adjudicator had no jurisdiction because the construction contract relied upon was said to be contained in the early exchange of letters between C and Co to which D was not a party.

The Issue

The court had to determine whether there was an effective reservation by D in relation to the jurisdiction of the Adjudicator and, if not, whether the parties agreed to give to the Adjudicator jurisdiction to decide his own jurisdiction.  If there was an effective reservation whether the Adjudicator had jurisdiction.


Akenhead J

Although there was no express reservation by D the words it used in its Response and Rejoinder were sufficient when judged objectively for D to reserve its position.  It was therefore unnecessary to consider whether the parties had agreed to give the Adjudicator jurisdiction but was necessary for the court to review whether there was such jurisdiction.  It was not possible on the summary judgment application to determine the various issues as to whether or not Co initially acted as agent for D or as to the contractual position between the parties.  D just passed the threshold of establishing a realistic prospect of a successful defence but as a condition for permission to defend D was ordered to pay into court within 14 days the full amount of the claim.


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