“2.1 High Tech was employed to undertake the “groundworks, design and installation of the substructure works including the concrete frame structure and lifts and stair cores and installation of precast stairs and drainage and other ancillary works” (“the Works”) of a development consisting of 22 No. flats over 4 stories, known as 162 Willesden Lane, London, England, NW6 7PQ (“the Project”). There is a construction contract formed between the Parties on or around1 February 2023 which consists of the Sub-Contract Agreement, the Main Contract Information Schedule, the Design and Build Sub-Contract Conditions (DBSub/C 2016) as amended, and the Numbered Documents (herein “the Contract”). The Sub-Contract sum is£2,392,623.35 (excl. VAT). 2.2 The Contract between the parties falls within the definition of a construction contract for the purposes of the Act. The Works falls within the definition of construction operations for the purpose of the Act. High Tech is entitled to refer the dispute referred to below to Adjudication in accordance with the Scheme and as further discussed within paragraph 3 of this Notice.”
“3.1 The Contract includes an adjudication provision pursuant to Section 8 (Settlement of Disputes); Article 4): Adjudication If any dispute of difference arises under this Sub-Contract, either Party may refer it to adjudication in accordance with clause 8.2 of the Sub-Contract Conditions. 17. Settlement of Disputes Nominating Body - The Royal Institution of Chartered Surveyor 8.2 If a dispute or difference arises under this Sub-Contract which either Party wishes to refer to adjudication, the Scheme shall apply, subject to the following: .1 for the purposes of the Scheme the Adjudicator shall be the person (if any) and the nominating body shall be that stated in the Sub-Contract Particulars (item 17); .2 where the dispute or difference is or includes a dispute or difference relating to clause 3.11.3 and as to whether a direction issued thereunder is reasonable in all the circumstances: .1 the Adjudicator to decide such dispute or difference shall (where practicable) be an individual with appropriate expertise and experience in the specialist area or discipline relevant to the direction or issue in dispute; .2 if the Adjudicator does not have the appropriate expertise and experience, the Adjudicator shall appoint an independent expert with such expertise and experience to advise and report in writing on whether or not the direction under clause 3.11.3 is reasonable in all the circumstances.”
“… I set out my thoughts on the challenge [made by WPL] in my e mail timed at 11:39 hours on11th September 2025 : - ‘1. In principle, I accept that, to the extent that the contract has been “fabricated, altered or misrepresented” in a manner which amounts to fraud, this could lead to it being void. In such circumstances I accept that this would act to deprive me of jurisdiction and/or operated as a substantive defence to the claim for payment. 2. The Courts have made it clear that an adjudicator can address allegations of fraud when addressing matters when they have jurisdiction to act. 3. The Courts have also made it clear that when faced with a challenge to jurisdiction, an adjudicator needs to investigate that challenge and reach a conclusion. 4. The allegation of fraud is a serious one such that it will need to be supported by clear, cogent and compelling evidence. I have not been provided with such evidence to reach a conclusion that the contract has been obtained by fraud. 5. In the circumstances I see no reason to resign as a result of the challenge to my jurisdiction’.”
“[07.19] Abbas Almajidi: “I am arranging JC[T] contract for you”. [07.20] Abbas Almajidi: “will call shortly” [07.32] Khalid Osman (in Arabic): “Good Morning, Ok I am waiting for your call.” [07.45] Khalid Osman: “But I said to Frank we don’t have JCT contract”. [07.46] Abbas Almajidi:“you have to arrange a JCT contract to his team”. [07.47] Abbas Almajidi: “otherwise they will not accept” [07.47] Abbas Almajidi: “you can say misunderstanding” [07.47] Abbas Almajidi: “I am the Chinese Embassy for some issues” [07.55] Khalid Osman: “No chance to say misunderstanding as the question was asked in front of everyone.” [07.56] Khalid Osman: “And my answer was we are working with Dr Abbas based on the trust” [07.57] Abbas Almajidi: “his team need this version and will arrange JCT copy”
“I will explain to you” [07.20] Abbas Almajidi: “will call shortly” [07.32] Khalid Osman (in Arabic): “Good Morning, Ok I am waiting for your call.” [07.47] Abbas Almajidi: “otherwise they will not accept” [07.47] Abbas Almajidi: “you can say misunderstanding” [07.47] Abbas Almajidi: “I am the Chinese Embassy for some issues” [07.55] Khalid Osman: “No chance to say misunderstanding as the question was asked in front of everyone.” [07.56] Khalid Osman: “And my answer was we are working with Dr Abbas based on the trust” [07.57] Abbas Almajidi: “his team need this version and will arrange JCT copy”
“I will explain to you”
‘Please see attached the tender that was submitted in August 2022, the JCT contract signed for the purposes, which can be reviewed/amended if needed, and the proposal letter which the information on the site progress up to date’
“1. The adjudication procedure does not involve the final determination of anybody's rights (unless all parties so wish). 2. The Court of Appeal has repeatedly emphasised that adjudicator's decisions must be enforced, even if they result from errors of procedure, fact or law; … 3. Where an adjudicator has acted in excess of his jurisdiction or in serious breach of the rules of natural justice, the court will not enforce his decision: … 4. Judges must be astute to examine technical defences with a degree of scepticism consonant with the policy of the 1996 Act. Errors of law, fact or procedure by an adjudicator must be examined critically before the court accepts that such errors constitute excessive jurisdiction or serious breaches of the rules of natural justice …”
“22. However there are two further factors which effectively override considerations as to whether or not there were one, two, three or four contracts between the parties which establish that the Adjudicator was acting within his proper jurisdiction: (a) The substantive decision making process upon which the Adjudicator had to embark in relation to the disputed claim put before him necessarily involved a consideration of whether there was more than one contract. It was thus within his jurisdiction to decide in effect that there was one contract, albeit one that may have been varied by agreement. (b) It was thus part of his jurisdiction to decide whether or not and if so to what extent the Basebuild Contract had been varied by the CPA and BMS Arrangements and indeed whether there were any further variations ordered to the Basebuild Contract. There may be cases, and this is clearly one, where substance and jurisdiction overlap so that it is within the Adjudicator’s jurisdiction to decide as matters within his or her substantive jurisdiction whether there have been in effect variations to the contract pursuant to which he or she has properly been appointed Adjudicator. It cannot then in those circumstances be a valid challenge to his or her jurisdiction that upon analysis he or she may be wrong as a matter of fact or law in determining that such variations were made to the originating contract as opposed to a series of later legally unconnected contracts. (c) The Supplementary Agreement is one which recognises in a way which has contractual effect that the parties were treating their contractual relationship as being in one “main contract”
“20. The difficulty in this case is that the Adjudicator is said not to have been appointed under a contract about which there is or can be no dispute. 21. The Adjudicator addresses this objection which was also advanced before him by Balfour Beatty. He concluded that on the basis that there is a construction contract "the gate is open to adjudicate the ambit of the contract". That would be correct if, as noted by HHJ Davis, the Adjudicator was properly appointed under a contract about which there is or can be no dispute. … 25. It follows that I consider the Defendant has a real prospect of successfully defending the claim on the basis that the contract found by the Adjudicator never came into existence and that he was not properly appointed under a contract about which there is or can be no dispute.”
“58. Mr Reed submits that it makes no difference because the nominating authority who purported to nominate the adjudicator, the President of the RICS, would have been the nominating authority under the Scheme (the Parties not having made any other agreement about the appointment of an adjudicator). In these circumstances Mr Reed submits that Twintec is seeking to promote form over substance and that its position is entirely artificial. Whilst, at a practical level, I have some sympathy with this submission, I cannot accept it because the validity of the procedure by which the adjudicator was nominated goes to the heart of his jurisdiction. 59. In support of this last point, Twintec relies on a decision of the Court of Appeal in [Pegram]. … 60. In my view it is clear from the passage [in which May LJ said ‘the only circumstance in which the adjudicator would clearly have had jurisdiction was if the claimant’s contentions as to the contractual terms were correct’] May LJ took the view that unless the adjudicator was appointed under the correct contractual provisions, his appointment would be a nullity. With this I respectfully agree. The jurisdiction of the adjudicator derives from the agreement of the parties, as reflected by the terms of the contract they have entered into. An adjudicator cannot be validly appointed under a contractual provision that does not in fact exist. He or she would have no jurisdiction to take up appointment and, in consequence, any decision that he or she might make would not be capable of enforcement.”
“It is necessary first to distinguish between a case where a contract is relied upon but is incorrectly identified in one or more particular respects, and a case where it can be said that the contract relied upon never existed or that the dispute being referred did not arise under the contract relied upon….an approach which deprived adjudicators of jurisdiction where a dispute has been referred that has arisen under a construction contract because of any error in its characterisation, would as a matter of legal policy be unacceptable.”
“There is, however, an intermediate position between there being no contract at all and there being a contract which is alleged but mis-described in some respect or respects by the Claimant, so that it can be said that the contract as described is not the contract under which the dispute arose but is (or would be) another contract altogether.”
“At least in a case where there can be no doubt that the adjudicator, if properly informed, should and would have concluded that he had jurisdiction and the proper basis of jurisdiction does not make a difference to the substantive outcome, the Court should not shut out a Claimant who comes to the court to enforce the adjudicator’s decision. There are two reasons for this conclusion, one based on principle and one on pragmatism. In principle, if the adjudicator as a matter of fact had jurisdiction and came to an unimpeachable substantive conclusion which is not affected by the correctly-understood route to jurisdiction, the Claimant has not secured a benefit by his choice of the wrong route to that end since the outcome is unaffected. One of the pre-requisites identified by Lord Evershed MR is therefore lacking. The pragmatic reason is that to hold otherwise would encourage the taking of points which, while technically fascinating, are entirely lacking in merit and inimical to the spirit of the adjudication scheme as a whole…. Therefore, whether the contract was precisely in the terms alleged by Mr Purton or differed from it in one or more respects, the basis of jurisdiction does not affect the applicability of the Scheme or the substantive outcome. That being so, in my judgment, no question of approbation and reprobation arises. I recognise that there could be a case where the choice of route to jurisdiction might affect the rules that applied to the adjudication or the choice of adjudicator. That is not this case and I do not comment on or prejudge what the correct result would be if such a case arose.”
“51. It may be linguistically and even technically correct to describe Chalcroft’s various alternative formulations as different contracts from the contract alleged by RMP. But that difference should not, in my view, be determinative when it is remembered that the court is concerned with one contracting process, with the only question being which party has correctly identified where in that process the relevantly binding contract was formed…. 52. I would therefore, hold that the Adjudicator had jurisdiction because, however the contractual arrangements between the parties are correctly to be described, they mandated the use of the Scheme and he was properly appointed by the Scheme’s procedure. 53. In reaching this conclusion I do not ignore the possible difference in substantive outcome that could arise from identifying the contract correctly. But it seems to me to be consistent with the legal policy and authority that I have summarised above to treat these substantive differences as going not to jurisdiction but to substantive outcome only. Once that approach is adopted, the present case is to be treated as one where the Adjudicator had jurisdiction to resolve the dispute that was referred to him (namely, how much was owing under interim application number 8) and addressed the correct question without bias, breach of natural justice or any other vice that would justify overturning his decision. If, which cannot be resolved now, he has made an error of law in referring to the wrong contractual provisions when deciding the substantive question that was referred to him, that falls within the category of errors of procedure, fact or law which the Court of Appeal has repeatedly emphasised should not prevent enforcement.”
“(a) Fraud or deceit can be raised as a defence to adjudications provided that it is a real defence to whatever the claims are; obviously, it is open to parties in adjudication to argue that the other party’s witnesses are not credible by reason of fraudulent or dishonest behaviour. (b) If fraud is to be raised in an effort to avoid enforcement or to support an application to stay execution of the enforcement judgment, it must be supported by clear and unambiguous evidence and argument. (c) A distinction has to be made between fraudulent behaviour, acts or omissions which were or could have been raised as a defence in the adjudication and such behaviour, acts or omissions which neither were nor could reasonably have been raised but which emerge afterwards. In the former case, if the behaviour, acts or omissions are in effect adjudicated upon the decision without more is enforceable. In the latter case, it is possible that it can be raised but generally not in the former.”