PROMET TECHNOLOGY LTD v IMPERIAL CASH & CARRY LTD

PROMET TECHNOLOGY LTD v IMPERIAL CASH & CARRY LTD

The contractor effectively reserved the right to defend the supplier’s enforcement proceedings by advancing its jurisdictional challenge despite having indicated to the adjudicator that it would participate in the adjudication process and advance its substantive defence
 

PROMET TECHNOLOGY LTD v IMPERIAL CASH & CARRY LTD
Technology and Construction Court
Alexander Nissen QC sitting as a Deputy High Court Judge
17 July 2015

The contractor effectively reserved the right to defend the supplier’s enforcement proceedings by advancing its jurisdictional challenge despite having indicated to the adjudicator that it would participate in the adjudication process and advance its substantive defence

The contractor’s jurisdictional challenge advanced before the adjudicator was that there was no concluded contract between it and the supplier because (i) The supplier wrongly addressed its invoices for the supply of steelwork to it (ii) It did not issue orders for the supply of the steelwork and (iii) The order related to another site and to another legal entity. The supplier contended that the contractor (i) submitted to the adjudicator’s jurisdiction after advancing its jurisdictional challenge as a result its representative’s email to the adjudicator and participating in the adjudication (ii) behaved in a way after the email was sent which was inconsistent with the continued reservation of the jurisdictional challenge which it had already made and (iii) waived its entitlement to advance that challenge in these enforcement proceedings. The supplier relied on the contractor’s representative’s email to the adjudicator in which he said that he had no objection in principle to taking part in any adjudication process as this would indeed allow an open and fair process and forum in which he could set out the contractor’s case for withholding the disputed invoices.

Alexander Nissen QC rejected the supplier’s contention and allowed the contractor to advance its jurisdictional challenge by way of defence to the supplier’s claim to enforce the adjudicator’s award of a specified sum to it. In doing so the judge stated that for a party to take the jurisdictional objection before the adjudicator, it is not a necessary requirement that he uses the words “I fully reserve my position about your jurisdiction” or “I participate under protest”. Whilst those are typical phrases that those with the benefit of legal representation might use, one must take into account, as was the case here, that the contractor, as responding party, was unrepresented before the adjudicator. Therefore, the real question is to interpret what was said and done to determine whether an effective reservation was made by looking at everything that passed between the parties. It was clear that the contractor took and maintained a jurisdictional objection in this adjudication from first to last. The contractor at no stage abandoned its jurisdictional challenge having regard to the facts that (i) It was unrepresented in the adjudication and (ii) The supplier accepted that a jurisdictional challenge was properly advanced at the outset. It therefore remained open to the contractor in these enforcement proceedings to maintain a defence based on that challenge.

THE FULL TEXT OF THE JUDGMENT OF ALEXANDER NISSEN QC

1. This is a summary judgment application by proceedings issued on 19 June 2015 to enforce the decision of an adjudicator, Mr Lorne Alway, dated 12 May 2015. The claimant, Promet Technology Ltd, issued a Claim Form against the defendant, Imperial Cash and Carry Ltd, seeking an order for enforcement of an adjudicator’s decision pursuant to which the defendant was ordered to pay the claimant the sum of £48,140 plus VAT, making a total of £57,768, together with the adjudicator’s fee of £6,000 plus VAT, thereby amounting to £7,200. No issue on quantum arises.

2. After issue, the matter was then the subject of standard form directions issued in this Court on 22 June 2015 by which Edwards-Stuart J ordered the defendant, if it wished to, to serve evidence by 7 July 2015 and the claimant could then serve evidence in response by 14 July 2015. Provision was then made for skeleton arguments leading up to the hearing.

3. The evidence in support of the application is contained in a witness statement of Victoria Kempthorne dated 19 June 2015 together with a further witness statement from Mr Patel, to which I will refer, but, as I will also explain in due course, there is no evidence from the defendant.

4. The substance to the claim giving rise to the adjudicator’s decision was the provision of steelwork at an address of 16A Eley Road, London, N18 3BB. The legal foundation for the claim is based on the existence, or otherwise, of an oral agreement said to have reached between the claimant and the defendant on 3 September 2013.

5. By way of introduction and really just to get it out of the way, both the notice of adjudication and the referral notice before the adjudicator described the responding party as “Imperial Cash and Carry” rather than “Imperial Cash and Carry Ltd”, but it seems plain from the outset that that was recognised to be an adjudication against Imperial Cash and Carry Ltd, (in other words, the defendant) and, although the adjudicator’s decision continued to refer to the responding party only as “Imperial Cash and Carry”, it has been common ground in this action that the adjudication was indeed against Imperial Cash and Carry Ltd, subject always to its jurisdictional defence.

6. The first threshold point taken by Mr Oram, for the claimant, in his skeleton argument, though only faintly pressed in oral submission, was that the pleaded defence in this legal action to enforce was insufficiently precise to give rise to an admissible defence. In the defence and counterclaim filed by a director of the defendant and signed by him with a statement of truth he said in paragraph 3:

”the claimant has addressed their claimed invoices to the wrong legal entity, Imperial Cash and Carry Ltd. Imperial Cash and Carry Ltd did not issue orders for claimed works to be carried out. The order relates to another site and another legal entity.”

7. So, the submission had been made by Mr Oram that that pleaded defence was not a defence by way of challenge to the jurisdiction of the adjudicator but was, as it were, simply a rehearsal of the underlying substance of the contention that there was no concluded contract with the defendant. He only faintly pressed that in oral argument and, in my judgment, was right only to put it in that guarded way. This defence was briefly pleaded by an unrepresented defendant. If the facts as proved in that statement of case were correct they would amount in law to a jurisdictional defence. That is accepted in Mr Oram’s skeleton argument at paragraph 14 and, in those circumstances, it is right and proper that I should construe the pleaded defence as raising a defence of jurisdiction. I do not regard it as fatal that this, then unrepresented, defendant did not put those facts into a proper legal context so as to explain how they gave rise to a permissible challenge to the adjudicator’s decision as a matter of law. In any event, of course, it would be open to the defendant to take such points as it is able on the summary judgment application irrespective of points pleaded or otherwise in the defence.

8. So, having got that preliminary matter out of the way, there are, in essence, two issues for me to decide. The first is Mr Oram’s threshold point that there has been a waiver by the defendant of any right to take the jurisdictional objection at all and, secondly, even if he is wrong about that, he says that the defendant has no reasonable prospects of being able to demonstrate its jurisdictional case on the facts. The defence which the defendant wishes to rely on for these purposes is to contend that there was no concluded construction contract between the claimant and the defendant. That is a matter which goes to the jurisdiction of the adjudicator who did not have jurisdiction to decide it. Mr Oram rightly accepts that this type of defence is classic territory for a jurisdictional argument. Therefore, if the material before the court demonstrates that there is an arguable case, which carries with it a sufficient degree of conviction, that there was no concluded contract between the parties, then summary enforcement will not be given and the proceedings must go over to trial. But Mr Oram says it is simply not open to the defendant in this case to take that point because he submitted to the jurisdiction of the adjudicator and waived his entitlement to object.

9. So, in order to address that issue, I need to look at the legal background which is not, I think, in dispute between the parties, though, as Mr Wright put it, the parties may differ on matters of emphasis. The starting point is the case of Aedifice Partnership Ltd v Shah [2010] EWHC 2106 (TCC), a decision of Akenhead J. For present purposes I refer to paragraph 21 and paragraphs 23, 24 and 25 of that judgment:

”21. I can draw these various strands together:

(a) An express agreement to give an adjudicator jurisdiction to decide in a binding way whether he has jurisdiction will fall into the normal category of any agreement; it simply has to be shown that there was an express agreement.

(b) For there to be an implied agreement giving the adjudicator such jurisdiction, one needs to look at everything material that was done and said to determine whether one can say with conviction that the parties must be taken to have agreed that the adjudicator had such jurisdiction. It will have to be clear that some objection is being taken in relation to the adjudicator’s jurisdiction because otherwise one could not imply that the adjudicator was being asked to decide a non-existent jurisdictional issue which neither party had mentioned.

(c) One principal way of determining that there was no such implied agreement is if at any material stage shortly before or, mainly, during the adjudication a clear reservation was made by the party objecting to the jurisdiction of the adjudicator.

(d) A clear reservation can, and usually will, be made by words expressed by or on behalf of the objecting party. Words such as “I fully reserve my position about your jurisdiction” or “I am only participating in the adjudication under protest” will usually suffice to make an effective reservation; these forms of words whilst desirable are not absolutely essential. One can however look at every relevant thing said and done during the course of the adjudication to see whether by words and conduct what was clearly intended was a reservation as to the jurisdiction of the adjudicator. It will be a matter of interpretation of what was said and done to determine whether an effective reservation was made. A legitimate question to ask is: was it or should it have been clear to all concerned that a reservation on jurisdiction was being made?

(e) A waiver can be said to arise where a party, who knows or should have known of grounds for a jurisdictional objection, participates in the adjudication without any reservation of any sort; its conduct will be such as to demonstrate that its non-objection on jurisdictional grounds and its active participation was intended to be and was relied upon by the other party (and indeed the adjudicator) in proceeding with the adjudication. It would be difficult to say that there was a waiver if the grounds for objection on a jurisdictional basis were not known of or capable of being discovered by that party.

[…]

23. It is also undoubtedly the case that Mr Shah raised a jurisdictional objection at the very least on the basis of the contract not being with him, in his letter to the adjudicator dated 31 March 2010. I am satisfied that this was a clear reservation by him on the grounds of there being no jurisdiction by reason of the contract not being with him. The question then arises: did he do anything thereafter by which he abandoned that reservation?

24. At least by the time that he served his Response in the adjudication, he was represented by solicitors; however, that fact does not mean that one interprets the words used in anything other than an objective way. Even if a respondent to an adjudication is unrepresented, one approaches the jurisdiction reservation issue on an objective basis; if that respondent uses non-legal or idiosyncratic language, the Court just has to do the best that it can to interpret what is said.

25. The Response needs to be looked at in the context that Mr Shah had already reserved his position on jurisdiction albeit that previously he had said that he would not participate in the adjudication and was then going on to participate. There is in the Response a detailed explanation why it is that there was said to be no contract between Mr Shah and Aedifice, that there was no letter dated 20 September 2006 sent to him and that there must have been terms which were agreed orally particularly to do with when and if payment would be made to Aedifice (see for instance paragraphs 5, 7, 9 and 10 set out above). Paragraph 31 makes matters clear that he invites the adjudicator to “decline jurisdiction” for two reasons, the first being that there was no contract and that the terms were not all agreed and secondly that Section 107 of the Housing Grants Construction and Regeneration Act 1996 was not engaged as not all the contract terms, if there was a contract between the parties, were in writing. In this latter context, it was said that there was no jurisdiction to adjudicate, unless the adjudicator could be sure that there was a contract in writing.”

10. I also refer to the case of CN Associates v Holbeton [2011] EWHC 43, reported at [2011] BLR page 261 and, in particular, paragraphs 31, 32, 33, 37 and 39:

”31. On the issue of reservation relating to jurisdiction, the position was at least generally summarised in the judgment in Allied P & L Ltd v Paradigm Housing Group [2009] EWHC 2890 (TCC) at paragraph 32:

’It has long been established in the relatively short period of time in which the Housing Grants Construction and Regeneration Act 1996 (”HGCRA”) has been in force that it is necessary for a party challenging the jurisdiction of the adjudicator to reserve its position in relation to its challenge; for instance, although not cited in argument, this issue was raised and commented upon by Mr Justice Dyson as he then was in The Project Consultancy Group v The Trustees of the Gray Trust [1999] BLR 377 at paragraphs 14 and 15. Having reserved its position appropriately and clearly, that party can safely continue to participate in the adjudication and then, if the decision goes against it, to challenge its enforceability on jurisdictional grounds in the Court. If it does not reserve its position effectively, generally it cannot avoid enforcement on jurisdictional grounds. I say generally because there might be unusual circumstances in which a jurisdictional challenge can be mounted when there has been no reservation; for instance, if the party making the challenge did not know or could not reasonably have ascertained the grounds of challenge before the decision was issued. It is however difficult to envisage circumstances in which a jurisdictional challenge on the grounds that there is no dispute should not and cannot be the subject of a reservation of rights.’

32. In Aedifice Partnership Ltd v Ashwin Shah [2010] EWHC 2106, the Court reviewed a number of the relevant authorities:

’15. So far as jurisdictional objections that have been or could be taken during the adjudication, one will need to ascertain whether the parties have expressly agreed to give the adjudicator jurisdiction to resolve those objections or, even if they have not as such done so, whether the objecting party has effectively reserved or waived its position on jurisdiction. For instance in Pilon Ltd v Breyer Group Ltd [2010] EWHC 837 (TCC), Mr Justice Coulson said:

’12. The law on this topic is clear. Jurisdictional issues often arise during the course of an adjudication, and it is usually sensible for the parties to ask the adjudicator to investigate the issue and state his conclusion. But, unless the parties have also agreed to be bound by the result of the adjudicator’s investigation into his own jurisdiction, his ruling on that issue will not be determinative, and the challenger can defeat any subsequent enforcement proceedings by showing a respectable case that the adjudicator had reached an erroneous conclusion as to jurisdiction: see, in particular, paragraph 10 of the judgment of May LJ in Pegram Shopfitters Limited v Tally Weijl (Uk) Limited [2003] EWCA Civ 1750.

13. Accordingly, there needs to be either an express agreement between the parties that the adjudicator’s decision on jurisdiction is to be binding or, at the very least, an implied agreement to the same effect, which may arise where the objecting party fails to reserve its position, or there has been a unilateral waiver of any jurisdictional objection. In both JW Hughes Building Contractors Limited v GB Metal Work Limited [2003] EWHC 2421 (TCC) and Nordot Engineering Limited v Siemens Plc [2001] CILL 1778, the court found an ad hoc agreement between the parties that they would be bound by the adjudicator’s decision as to jurisdiction, but such cases are rare. Generally speaking, as Dyson LJ put it in Amec Projects Limited v Whitefriars City Estates Limited [2004] EWCA Civ 1418, “the ‘decision’ of an adjudicator as to his jurisdiction is of no legal effect and cannot affect the rights of the parties….”

16. In Thomas-Fredric’s (Construction) Ltd v Keith Wilson [2003] EWCA Civ 1494, Simon Brown LJ (as he then was) said:

’33. The position can I think be summarised in the following two propositions. (1) If a defendant to a Part 24(2) application has submitted to the adjudicator’s jurisdiction in the full sense of having agreed not only that the adjudicator should rule on the issue of jurisdiction but also that he would then be bound by that ruling, then he is liable to enforcement in the short term, even if the adjudicator was plainly wrong on the issue. (2) Even if the defendant has not submitted to the adjudicator’s jurisdiction in that sense, then he is still liable to a Part 24(2) summary judgment upon the award if the adjudicator’s ruling on the jurisdictional issue was plainly right.’

17. There is obviously no great difficulty about an express agreement made by both parties with their eyes open that the adjudicator should have jurisdiction to produce a binding decision that he has jurisdiction to resolve the particular dispute referred to adjudication. It is with the implied agreement or waiver or abandonment of a jurisdictional objection that parties and indeed adjudicators get into murkier waters. There is no doubt that, when one party raises a jurisdictional objection, good or bad, adjudicators, like arbitrators, are entitled to enquire into their own jurisdiction. In practice in adjudication, that will usually involve considering the Referral, witness statements and other documents available to the adjudicator at the time that he is making that enquiry. Even if no objection is made, an adjudicator who believed that he had no jurisdiction could raise the issue with the parties and, unless persuaded otherwise or the parties agreed to give him jurisdiction, he could stand down.

18. There have been a number of observations in various cases about what is needed for a party making a jurisdictional objection during the course of the adjudication effectively to do so. In Project Consultancy Group v Trustees of the Gray Trust (1999) 65 Con LR 146, Mr Justice Dyson had to deal with an allegation that there had been an ad hoc agreement to refer a jurisdictional issue to the adjudicator. He said dealing with the particular facts:

’In my view, the defendants’ solicitor’s letter of 9 March 1999 stated in the clearest terms that the defendants protested the adjudicator’s jurisdiction, and that they would not recognise and comply with any decision to award money to the claimant. The letter also made it clear that, if the adjudication proceeded, they reserved their rights to participate, but without prejudice to their contention that there was no jurisdiction. I do not consider that there can be any reasonable doubt as to the meaning of that letter. The only real question is whether, by participating in the adjudication process, the defendants waived the jurisdiction point, and agreed to submit to abide by the decision of the adjudicator on that issue. The only material relied on by Ms Rawley [Counsel] is the content of the defendants’ response…But, in their response, the defendants continued to assert that the adjudicator had no jurisdiction…It is a matter of fact whether a parties submit to the jurisdiction of the third person…’

19. In Euro Construction Scaffolding Ltd v SLLB Construction Ltd [2008] EWHC 3160 (TCC), the judge said:

’So far as jurisdiction challenge to an adjudicator is concerned, it is necessary for the party objecting to the adjudicator’s jurisdiction to make a clear and full reservation’.

The report of that case goes on to review whether an adequate reservation was made and considers, amongst other things, whether the adjudicator proceeded on the basis that there had been a reservation about jurisdiction. In that case, there had been an effective reservation but in the event the jurisdictional challenge was not a good one.

20. In CJP Builders Ltd v William Verry Ltd [2008] EWHC 2025 (TCC), the following was said at paragraph 72:

’Various cases such as Thomas Frederic’s (Construction) Limited v Keith Wilson [2004] BLR 23 and The Project Consultancy Group v The Trustees of the Gray Trust [1999] BLR 377 make it clear that if there is to be an objection to jurisdiction of the arbitrator generally there should be a clear reservation of the objecting party’s stance on jurisdiction. Such a reservation will usually be done effectively by clear words but it could also be done by unequivocal conduct.’

33. There is little to add to these observations. If a party does not effectively reserve its position on a given jurisdiction issue, of which it had actual or constructive knowledge, it cannot raise it as an effective objection to a claim for the enforcement of the relevant adjudication decision. It becomes a somewhat different point if there arises an issue as to whether the parties have or are to be taken to have agreed that the adjudicator is to have jurisdiction to decide his or her own jurisdiction. One then needs to determine whether there was by words or conduct or both an agreement, express or implied, to that effect. Even if there was agreement, however, the Adjudicator must adjudicate upon it; he or she must go further than simply enquiring into his or her jurisdiction and reaching a provisional view. If he or she does not adjudicate upon jurisdiction which the parties have by agreement conferred on him or her, then there will be no binding decision on that issue and the Court may then have to resolve the issue.

[…]

37. So far as whether there was an effective reservation by Holbeton in relation to the jurisdiction of the Adjudicator, there clearly was not an express reservation as such in the sense that Holbeton did not use words such as “I fully reserve my position about your jurisdiction” or “I am only participating in the adjudication under protest”. However, what it did do unequivocally in its Response was to assert that the Adjudicator did not have jurisdiction for a number of reasons including there not being any relevant contract between it and CNA. This was re-asserted in its Rejoinder.

[…]

39. Given that this is the case, it is unnecessary to consider whether the parties agreed to give to the Adjudicator jurisdiction to decide his own jurisdiction. It is not wholly irrelevant to consider how the Adjudicator addressed the issue. At paragraph 20 of his decision, he made it clear that he did not consider that the parties had agreed that he could make a binding ruling on jurisdiction, because he said so in terms. Everything which followed in relation to jurisdiction must be looked at in the context of his understanding on this. He does not actually decide, as such, the jurisdictional issue but he finds enough to satisfy himself that he has jurisdiction. The very fact that he does not include in the decisive part of his decision (set out above) any declaration about the jurisdiction issue also points to him not addressing the jurisdictional issue as part of his decision. The wording which he uses simply expresses his rationalisation as to why he previously thought that he had jurisdiction. It is in the past tense (see paragraph 20: “I had to decide… I set out below the parties’ principal arguments and evidence which led me to conclude that I had a valid appointment…”). Therefore, even if the parties had agreed to give him jurisdiction to decide his own jurisdiction, he did not as such exercise that jurisdiction, albeit that he made certain “findings” following his investigation into his jurisdiction. It would therefore follow that, since there is no decision, as such, on jurisdiction the Court must now review that aspect of the matter.”

11. In essence, the position is that for a party to take the jurisdictional objection before the adjudicator it is not a necessary requirement that he uses the words “I fully reserve my position about your jurisdiction” or “I participate under protest”. Those are, of course, typical phrases that those with the benefit of legal representation might use, but one must take into account, as was the case here, that the defendant as responding party, was unrepresented before the adjudicator. Therefore, the real question is to interpret what was said and done to determine whether an effective reservation was made by looking at everything that passed between the parties. A relevant factor is how those words and that conduct manifested itself and appeared, not least to the adjudicator in the particular case, though of course that would not itself be determinative, but simply indicative.

12. Paragraph of 24 of the judgment in Aedifice says in terms:

”if a respondent to an adjudication is unrepresented, one approaches the jurisdiction reservation issue on an objective basis; if that respondent uses non-legal or idiosyncratic language, the Court just has to do the best that it can to interpret what is said.”

13. Mr Oram also relies on Farrelly (M&E) Building Services Ltd v Byrne Brothers (Formwork) Ltd [2013] Bus LR 1413 but I am bound to say, respectfully, that I do not get much further assistance from that case, or the case of Cowlin Construction Ltd v CFW Architects [2003] BLR 241 to which it refers. In any event, I agree with Mr Wright that it begs the question of what qualifying challenge was in fact made, so I now have to consider the evidence of what was put forward by the responding party in response to the issue of the adjudication.

14. I should say, whilst considering the chronology as I do below, that it is accepted that the defendant as responding party did make a jurisdictional challenge up until 22 April but it suggested by the claimant that thereafter he abandoned it and, in effect, submitted to the jurisdiction of the adjudicator. It is not contended by the claimant, however, that at any stage the defendant agreed expressly that the adjudicator should have jurisdiction to decide in a binding way whether he had jurisdiction. Such express vesting of jurisdiction to decide his own jurisdiction is not a feature of the present case.

15. The first communication of relevance is the email of 14 April from John Mulchandani on behalf of the defendant to his counterpart, Mr Cragg, who was representing the claimant, which says:

”I am in receipt of your notice of adjudication, duly received on 9 April 2015, and we have previously advised you that Imperial Cash and Carry Ltd is being wrongly pursued in this matter. We therefore yet again advise that this notice of adjudication is wrongly addressed to Imperial Cash and Carry Ltd and, as such, reject this invitation to adjudication.”

16. I should add by way of comment that this email was copied to the adjudicator.

17. I regard the rejection of the invitation to adjudicate as consistent both with the notion of not participating in the substance of the adjudication but as also saying that the adjudication should not even get started because of the wrongful involvement of Imperial Cash and Carry Ltd in the process. Similarly, on page 165 of the bundle, there is an email of 16 April 2015 from John Mulchandani, this time sent directly to the adjudicator:

”In respect of your letter dated 13 April I wish to bring to your attention that the claim is addressed to the incorrect entity (wrong responding party), Imperial Cash and Carry Ltd. The invoices in dispute have been incorrectly addressed to Imperial Cash and Carry Ltd, a fact pointed out on numerous occasions to both Promet Technology Ltd and RJC Consultants. Indeed, on receipt of the notice of adjudication dated 9 April 2015 I responded as such. Clearly this inaccuracy has not been highlighted to you previously, therefore Imperial Cash and Carry Ltd cannot accept being responsible for your fees as laid out in your terms of appointment.”

18. Again, in my judgment that is a clear indication and, indeed, a statement to the adjudicator that the defendant was not recognising the adjudicator’s jurisdiction since they were refusing to enter into a contract of appointment with him. However, Mr Alway responded on 16 April saying that, unless the referring party called upon him to resign or he is presented with persuasive evidence that would be wrong for him to continue, then he would carry on as adjudicator in the matter. To date he said he had not been provided with any, let alone persuasive, evidence in that regard and he reminded the parties that they could apply to the courts for a declaration on the issue. Alternatively, he said the responding party could choose not to participate in this adjudication, but obviously that carries certain risks. So, the adjudicator was offering a suite of alternative courses that might be adopted. One course that he did not appear, at least clearly, to offer to Mr Mulchandani was the opportunity to the defendant to continue to participate in the adjudication, having stated its position on jurisdiction, not, as it were, going so far as to invite the adjudicator to resign but simply saying “I am objecting to jurisdiction but I participate nonetheless”. That was not expressly offered by the adjudicator to the responding party.

19. Communications then continued. On 14 April, Mr Alway wrote to the parties and said that it is a matter for the responding party:

”they can either submit a case establishing they are not the relevant contracting party calling upon me to resign, participate or not participate”.

20. On 22 April the responding party provided the adjudicator with a submission. For reasons I do not understand, I have not been provided with a copy of that document so I do not know what it said and I can only glean the gist of it from the adjudicator’s own decision. My understanding is that it is conceded by the claimant in this action to have been a proper jurisdictional challenge. I take that from paragraph 19B of Mr Oram’s skeleton argument in which he says:

”Albeit not on time, D made submissions going to jurisdiction on 22 April 2015”

21. I take the balance of the chronology from paragraph VIII of the adjudicator’s decision. So, he says in his letter of 23 April that he had had no evidence or case to persuade him to resign, and on 23 April Mr Mulchandani wrote in the following terms, and I quote from the email although I do not have the email itself:

”Let me set out at this point that I have no objection in principle to taking part in any adjudication process as this would indeed allow an open and fair process and forum in which I can set out my case for withholding the disputed invoices. Whilst I thank you for directing an extension of time to respond until Monday 27 April 2015, and can confirm that ordinarily I would be prepared to respond by the set time, I yet again must bring to your attention the vital point of the correct corporate entity being asked to respond. Under such circumstances [and, I interpose to say “such circumstances” in my judgment is a reference to the vital point of the correct corporate entity being asked to respond] I am not sure of the process going forward, other than your point about the possibility of you reaching a decision without a detailed response from the responding party, something I would like to avoid.”

22. This is, I should say, the turning point from which period the claimant says that the jurisdictional point it accepts had been made up until 22 April was thereafter waived or abandoned. In my judgment, this email can be properly read as one in which the defendant, unrepresented as he was, was explaining the conundrum in which he found himself regarding the vital point that he did not recognise there being a construction contract between it and the claimant and yet wanting, or at least not having any objection in principle, to taking part in the adjudication process and wishing therefore to submit a response of some kind.

23. To those experienced in the business, the obvious way to deal with that is indeed to submit a response, having made it clear that your reservation of a jurisdictional objection is maintained, and in essence, in my judgment, that is what Mr Mulchandani was seeking to do here. He was probably put in that difficult position because that option or course of action had not obviously been made clear to him by the adjudicator hitherto in the suite of options offered by him.

24. Be that as it may, after various other short email exchanges the defendant did then submit a response in the adjudication. Far from the claimant’s case being that this amounted a waiver or submission of jurisdiction, at paragraph 11 of the witness statement of Victoria Kempthorne it accepts that the defendant raised a jurisdictional challenge within that document and it is right for me to refer to some passages of it in that context. The front page of it says: “Purpose of this responding document”: It says:

”This document is prepared in response to the issue to Imperial Cash and Carry Ltd, herein referred to as ‘ICCL’, of an adjudication notice served on 14 April by RJC Consultants on behalf of their client, Promet Technology Ltd, hereafter referred to as ‘PTL’…

(1) Introduction.

1.1 It is refuted that an oral (or otherwise) agreement exists between PTL and ICCL for structural works undertaken at 16A Eley Road, London, N18.

1.1.1 It is vital that it is understood that the invoices in dispute have been wrongly addressed to ICCL.

1.1.2 There are a number of other reasons as to why the invoices are being disputed, PTL invoices 76457776 and 7777. This is elaborated on in the following pages.”

25. I interpose to say that the reference to it being vital that it is understood that the invoices have been wrongly addressed is language similar to that used by the defendant in the earlier email to which I have already referred, and it is plain in my judgment that the objection was therefore being maintained. Having set out its case on the substance of the matter, at the end of the response at paragraph 4.1 the responding party said:

”The adjudicator is requested to take into account the respondent’s statement, in particular:

4.1.1, that the simple contract referred to does not in fact exist between PTL and ICCL for the works specifically relating to 16A Eley Road…

4.1.2, if it is decided that this contract does not exist then this adjudication cannot continue against ICCL.”

26. Again, in my judgment, that is a sufficiently clear indication of the defendant’s position, when read in the context of the previous jurisdictional objections which, it is accepted, had been made. It is clear that those jurisdictional objections continued to be made even in circumstances where the particular phase “jurisdictional objection” or similar was not used.

27. I should continue with the chronology by saying that, thereafter, in the adjudication the responding party sought and obtained further time to put in what has been described as a rejoinder, although I do not think it was described as a rejoinder itself in the adjudication, and that that rejoinder was put in on 5 May. Reliance is apparently placed on that as some sort of further waiver of the jurisdictional point which had previously been made. I had not been provided with those documents so I cannot tell, on the material before me, whether they contain some abandonment or express reservation or statement. I can only proceed on the basis that a submission of some kind was made.

28. Returning then to the decision, I should also refer to the way in which the adjudicator himself reacted to the submissions that had been made and, for these purposes, refer to paragraph 9 of the decision, which carries the notable heading, “Jurisdiction”. It says of the responding party:

”primarily and essentially its only defence is that, in respect of the monies claimed and the invoices identified, these were wrongly addressed to the Responding Party. There is no contract between Imperial and Promet and therefore there can be no referable Dispute between the named Responding Party and the named Referring Party of the subject matter which was the subject matter of the notice of adjudication. The Referring Party says otherwise. Given that this is essentially the Responding Party’s only defence, I will address it along with the other substantive points I need to consider in reaching my decision.”

29. Pausing there, the adjudicator was, therefore, saying that there was a jurisdictional point, namely there was no contract between the two relevant parties, but since conveniently it happened to overlap with the substantive defence he would deal with it as part of the substance of his decision, but that was not to rob it of its jurisdictional character. He identified the party point in paragraph 19.1 under the heading “Matters to Be Addressed – is the named Responding Party a party to the contract relied upon by the Referring Party?”

30. Then, most materially in my judgment, he dealt with the jurisdictional questions in paragraphs 22 and 23 of his decision. In paragraph 22 he said:

”in considering whether or not there is a contract or several, I am, as I have said above, essentially dealing with jurisdictional issues in that if there is no contract, or at least not between Imperial and Promet, there can be no Dispute or Adjudication”

31. At paragraph 23 he said:

”I made clear to the parties during the adjudication that either party could apply to the courts for declaration on the issue. It is also well-known and established that I cannot bind the Parties as to my jurisdiction. Nevertheless, given the nature of the issue I had to decide whether to carry on as adjudicator or, on the evidence, resign. Given the way in which the adjudication was conducted, namely that I had no evidence and the responding party supported the proposition that I should continue until late on in the process and the referring party clearly wanted me to continue, I have proceeded to give my Decision in this case and at the same time dealing with the key jurisdiction issue raised.”

32. In essence, Mr Oram says that I have to look at the conduct of the responding party after 22 April and he says that such conduct points to behaviour which is inconsistent with the continued reservation of the jurisdictional objection which had already been made. Having regard, firstly, to the fact that the defendant was unrepresented, and secondly to the fact that it is accepted that a jurisdictional objection was properly made at the outset, I am quite clear that, at no stage, did this defendant abandon that objection. In in that context I refer again to paragraph 23 of the Aedifice case, in which a similar issue arose. At paragraph 25, Akenhead J pointed out that the Response needed to be looked at in the context of the prior reservation of jurisdiction which had been given in that case. If there were any documents which I have not seen, which might, if one looked at those alone, indicate that the defendant was participating unreservedly in the adjudication, one still has to the look at the full context and the full history in which a jurisdictional objection had already clearly been taken. In the CN Associates case to which I have also referred Akenhead J said, as I have pointed out, that what the adjudicator thought about the matter was not irrelevant. In that context, in the passages that I have already referred to, it is plain that this adjudicator thought that there was a jurisdictional objection which had been raised and was still being pressed from first to last. That is the very reason why he proceeded to explain his reasoning in relation to it in the decision itself and he clearly did his best to do so but, whilst doing so, recognised that he could not bind the parties in that regard. So, it is therefore clear, in my judgment, that the defendant took and maintained a jurisdictional objection in this adjudication from first to last, and I therefore conclude that it remains open to him in this action to maintain such a defence. I therefore reject the contention that there was a submission to the adjudicator’s jurisdiction after 22 April or that the defendant somehow waived its entitlement to object in these proceedings.

33. I therefore come to the question of whether, on the substance of the matter, there is material before the court which amounts to a defence on the substantive point which carries with it a degree of conviction. As to that test, I take the summary from the Easy Air v Opal case, [2009] EWHC 339. The principles are well known:

”i) The court must consider whether the claimant has a “realistic” as opposed to a “fanciful” prospect of success: Swain v Hillman [2001] 1 All ER 91;

ii) A “realistic” claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 at [8]

[…]

v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] EWCA Civ 550“

34. So, the test for me is whether the defendant, in the material before the court, has provided a realistic, as opposed to fanciful, prospect of succeeding on its case that there was no concluded contract between the claimant and the defendant. A realistic prospect is one that has to carry some degree of conviction. It must be more than merely arguable. A mere statement that there was no contract without something to back that statement up would not have a relevant degree of conviction.

35. On the claimant’s own case, this is a contract which was concluded orally on 3 September 2014. The claimant rightly accepts that that type of agreement is one which, classically, would have to be the subject of proof by way of oral evidence at trial were the case properly disputed as to the content of that oral evidence.

36. I mentioned the proposition that the court must take into account not only the evidence before it but evidence that can be reasonably expected to be available at trial. In my judgment, that additional scope of material is really directed to a case where there may be expert evidence or there may be disclosure or documents of some kind which are not presently available to the party facing the application for summary judgment. It is not, in my judgment, appropriate to rely on it in this case, where all the relevant material should be available to the defendant in this application. It was not suggested to me in oral argument that there is any evidence which has not been presented to me now which, free of other constraints, could be obtained in due course for the purposes of trial.

37. So, the evidence before the court in support of the claimant’s position is essentially contained in two witness statements. There is the first witness statement from Mr Pravin Patel dated 7 April 2015 which was used in the adjudication and was therefore exhibited to Victoria Kempthorne’s witness statement in support of these proceedings. In that statement he details, albeit briefly, what happened on 3 September 2013. He says he met up with John Mulchandani and Nick Modha of Imperial to discuss and agree Imperial’s requirements “and at the meeting we discussed and agreed the following matters”. At paragraph 1C he says “following discussions we agreed that Key Point would pay Promet for all of the work carried out to date that Promet had originally issued their quotation to the contractor for and Imperial would pay the invoices for work related to the quotation that had been addressed to themselves. It was further agreed that Imperial would be responsible for all future work”.

38. In paragraph 3 he says: “Imperial have paid one invoice but are refusing to pay the others, claiming that they are to be paid by the contractor. This is wrong. Not only did Imperial agree to pay for this work but also the contractor has not been involved in any of the instructions, approvals or the financial side of any of the work carried out by us on the project.”

39. As I have said earlier, on 23 June 2015 this court gave directions that the defendant should have permission to serve and file evidence in response to the claimant’s application but the defendant failed to adduce any evidence in support of its case that there was no oral agreement as alleged by the claimant in its particulars of claim and in Miss Kempthorne’s witness statement. That notwithstanding, a further witness statement from Pravin Patel was served on 14 July 2015 endorsed with a statement of truth. I will not read it, but paragraphs 4, 5, 6, 7, 8 and 9 all bear on the subject matter of the oral agreement and are responsive to the brief defence which the defendant had signed in the interim.

40. So, the issue for me is whether, in the light of the material with which I have been provided, the defendant has a realistic, as opposed to fanciful, prospect of success in demonstrating that the oral agreement was not as the claimant has contended, and that has got to be a contention which carries with it a degree of conviction. Mr Wright frankly accepts the difficulty which he faces, which is that his clients simply failed to provide any contrary evidence. That of course is its right. It was not obliged to serve evidence in accordance with the directions of Edwards-Stuart J, and it can make its case out, if it can, on the documents which are available, but the fact of the matter is that there is no material before this court, backed up by a statement of truth, which condescends to any detail whatsoever about the meeting of 3 September and nor was anything provided in response to the second witness statement of Mr Patel.

41. That being so, Mr Wright has valiantly done what he can to impugn the claimant’s case by reference to a series of documents. Firstly, the content of the Response which obviously, for the reasons I have already dealt with, denies the existence of a contract, but of course that is a submission that was made in the adjudication and is not supported by a statement of truth for the purposes of these proceedings and does not, in my judgment, really engage with the detail of the meeting of 3 September.

42. Mr Wright has also pointed to contemporaneous documents, both immediately before the meeting on 3 September and emails that passed between the parties and an invoice sent after the meeting, which he says contain anomalies which give rise to some justifiable doubt as to whether the evidence of Mr Patel can possibly be correct. Those include the fact that one the invoices at least was made to a company other than the defendant, notwithstanding that it was subsequent to the alleged oral agreement. That, in turn, is responded to by Mr Oram who says it is not an invoice that was the subject of this claim and is consistent with paragraph 3.10 and 3.14 of the referral notice. Mr Wright also refers to a series of emails chasing the payment of the invoices, in which he points out there was no reference to the oral agreement on 3 September as bolstering the basis for the entitlement to payment. Although the claimants were saying that they were chasing the invoices, at no stage did they say or make reference to the oral agreement. Again, that is a matter which could be asked of Mr Patel but, as Mr Oram has pointed out, Mr Patel was not actually a direct recipient of any of those emails, although he might have been a party to a joint email on 25 July 2014.

43. In my judgment, the difficulty in these circumstances, is that the material before the court is really very unsatisfactory. This is a paradigm case in which it was incumbent upon the defendant to set out in a witness statement, supported by a statement of truth, what its case was as to the meeting of 3 September. It should have availed itself of the opportunity to do so, particularly armed with the knowledge that it had failed convincingly to persuade the adjudicator of its case. The adjudicator not only found against it but said that there was a lack of detail and although, as a matter of the utmost technicality, the statement of defence is signed by a statement of truth, even that does not expressly refer to the meeting of 3 September. Nor does it go through what the defendant’s case is in any meaningful way.

44. Therefore, I have come to the conclusion that, on the material before the court, whilst a defence of “no contract between the parties” is one which itself is a legitimate defence, it is not one available on the facts of this case on the material before the court and not one that carries any degree of conviction. It is for that reason that I conclude that this is an appropriate case for summary judgment, and, as I have said, there is no issue as to quantum. I should say that I do not for one moment suggest that the defendant cannot bring his own court proceedings in due course to challenge the substance of the adjudicator’s decision and, were he to do so, he would not be bound in any res judicata sense by a finding from me that the contrary was unarguable. I have simply dealt with it by saying that, on the basis of the evidence before the court, the defence had no degree of conviction, but I certainly would not intend to shut the defendant out, were he to wish to do so, to challenge the substance of the decision. I say that even though it goes, coincidentally, to the same point, because he might in due course provide more evidence to the court than has currently been provided. But, for the reasons that I have articulated, the defendant has wholly failed to demonstrate on the facts that there is anything in the jurisdictional point which he has persisted in hitherto.

45. So, for those reasons, I conclude that this is an appropriate case for summary judgment and therefore I give summary judgment in the amount claimed. I give judgment for the principal sum of £48,140, VAT of £9,628, the adjudicator’s fee of £7,200; interest, which is not the subject of dispute, in the sum of £661.43, making a total of £65,629.43.