Purton v Kilker Projects Ltd (TCC - 16.9.2015)

Purton v Kilker Projects Ltd (TCC - 16.9.2015)

The sub-contractor did not approbate and reprobate so as to justify the adjudicator’s decision not being enforced in contending that the sub-contract was in a particular form even if it were to be found that it was in fact in a different form
 

PURTON V KILKER PROJECTS LTD

TECHNOLOGY AND CONSTRUCTION COURT

STUART-SMITH J

16TH SEPTEMBER 2015

The adjudicator awarded the sub-contractor a specified sum on the basis that an oral construction contract had been concluded which incorporated the payment and adjudication provisions of the Construction Act and the Scheme for Construction Contracts. The contractor contended that no contract had been concluded and that even if one had (i) It was not in the form for which the sub-contractor contended and (ii) The sub-contractor would be approbating and reprobating if he were permitted now to rely on another form of contract in the enforcement proceedings.

 

Akenhead J held that a sub-contract made orally had been concluded and rejected the contractor’s contention with regard to approbation and reprobation. He therefore enforced the adjudicator’s decision.

 

Whilst it was highly probable that the sub-contractor would establish at trial that his characterisation of the contract was correct, the court should also be slow to conclude that the contractor had "no real prospect" of showing that that characterisation of the contract was wrong in one or more respects. However, whether the contract was precisely in the terms alleged by the sub-contractor or differed from it in one or more respects, the basis of jurisdiction did not affect (i) The applicability of the Scheme for Construction Contracts in the absence of any adjudication provisions forming part of the alleged contract or (ii) The substantive outcome of the adjudication. The form of the contract was not the decisive issue and instead what mattered was whether the contractor had reasonable prospects of successfully defending the claim. The contractor had no reasonable prospects of successfully defending the claim because (i) The adjudicator correctly reached his decision on the basis that the adjudication provisions of the Construction Act and the Scheme for Construction Contracts applied (ii) The contractor had not identified any variant of the contract entered into which would affect the outcome of the adjudicator's substantive decision and (iii) The contractor accepted that it could not challenge the adjudicator’s substantive reasoning in reaching his decision assuming that his analysis and ruling on jurisdiction was correct. No question of approbation and reprobation could therefore arise.

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