The defendants disputed an adjudicator’s award on the basis that (i) they had contracted with the claimant as an individual and not as a company, (ii) documents had been fabricated and the original contract altered and (iii) there had been no consensus to found an agreement in writing (with the result the adjudicator had no jurisdiction). On the facts, the court held that the defendants had no real prospect of defending the claim since (i) no question had been raised as to the identity of the claimant prior to the adjudication, (ii) there was insufficient evidence to show any fraud on the claimant’s part and (iii) the defendants had throughout acted as if a written contract was in place and had waived any right to object to the adjudicator’s jurisdiction on this basis.
Judge Frances Kirkham, Technology and Construction Court
The claimant, an architectural company, issued proceedings to enforce the decision of an adjudicator.
The parties and the adjudicator had proceeded on the basis that Andrew Wallace Architects Limited contracted with the defendants on 11 August 2003. (In fact, no company with the name Andrew Wallace Architects Limited existed. The only relevant company was Andrew Wallace Limited, the claimant, but no point was taken on this matter in the enforcement proceedings).
The defendants defended the claim not on the basis of the incorrect company name, but on the grounds that they had contracted with Mr Andrew Wallace as an individual and not with his company. The defendants also alleged that manuscript amendments to the contract were made fraudulently, by or on behalf of the claimant and unknown to the defendant until after the adjudication, and that the claimant had behaved fraudulently in other areas such that the adjudicator’s decision should not be enforced. Finally, the defendants also alleged that they had not intended to contract on the basis of the written contract as alleged by the claimant, such that there was no consensus to found an agreement in writing such that the adjudicator had no jurisdiction.
The court held that the defendants had no real prospect of successfully defending the claim on the basis that the correct contracting party was Mr Wallace and not the company. The defendants had throughout proceeded on the basis that they had contracted with the company and had paid substantial sums of money into the company’s account. It was most unlikely that the defendant would not have raised the question of the identity of the contracting party at an earlier stage, had there been any real question on the part of the defendant with respect to that matter.
Secondly, the court held that there was no real prospect of successfully defending the claim on the basis that the claimant fabricated documents or behaved fraudulently. Nor could it be said that to enforce the adjudicator’s decision would be to assist in the perpetration of a fraud.
Finally, the court also held that there was no real prospect of successfully defending the claim on the basis that there was no consensus to found an agreement in writing. The defendants had throughout accepted that there was a contract in writing and had acquiesced in the adjudication. The defendant had expressly agreed, after commencement of the adjudication, that the adjudicator had jurisdiction. The fact that some terms might be disputed after the event would not prevent there being a contract in writing.
For full judgment, please click here