Cain Electrical Ltd v Cox

Summary judgement should be ordered to enforce the adjudicator's award to the sub-sub-contract dispite it having adduced evidence in the adjudication that terms of the sub-sub-contract were agreed orally
Technology and Construction Court
His Honour Judge Havelock-Allan QC
24 May 2011

The adjudicator made an award in the sub-sub-contractor’s favour. The sub-contractor in the court enforcement proceedings contended that the adjudicator did not have jurisdiction on the ground that the sub-sub-contractor advanced a case in the adjudication which included the assertion that some of the terms of the sub-sub-contract were agreed orally and did not withdraw its reliance in the evidence it adduced in the court enforcement proceedings. The sub-contractor submitted that the sub-sub-contractor could have withdrawn its reliance on the oral agreements in the course of the adjudication (with the result that the sub-contractor’s jurisdictional objection would have fallen away) but had not done withdrawn its reliance even in the witness statement of its solicitor in support of its summary judgment application and could not now do so and had to demonstrate that the adjudicator had power to make a binding decision on the case which was put before him and that there was no real prospect of the sub-contractor proving the contrary at trial but had failed to demonstrate either of these two matters.


Judge Havelock-Allan rejected the sub-contractor’s submissions and enforced the award. The only material in support of the sub-sub-contractor having relied on oral agreements was that contained in its referral notice and its owner’s witness statement. The sub-sub-contractor disowned both documents in the court enforcement proceedings insofar as they suggested that any terms were orally agreed. The sub-contractor always denied that any terms were ever agreed which were not put in writing. There was therefore no real prospect of the sub-contractor establishing at a trial of the claim that the adjudicator did not in fact have jurisdiction. This was so even though the reason why he had jurisdiction had only become clear from the stance taken by the sub-sub-contractor in its particulars of claim in the enforcement proceedings. Whether jurisdiction in accordance with the notice of intention to refer was established depended on the evidence placed before the adjudicator. In the instant case the evidence included a witness statement from the sub-sub-contractor’s owner which referred to terms which he thought had been orally agreed. Whilst the sub-sub-contractor retreated from the oral agreement about who was responsible for proving ducts in its reply in the adjudication, it still retained its case based on oral agreements about the due date for payment of invoices.