The claimants, Goldsworthy & Ors (“t/a Goldsworthy Builders”) applied for summary judgment to enforce an adjudication decision that the defendants, Harrison & Anor, pay the claimants’ builders £72k.

In November 2012 the parties expressed an intention that they would enter into the JCT  Minor Works Contract   2011 (“Minor Works contract”) for the works at the defendant’s property, but the parties did never reach final agreement on a number of terms, such as the rate for liquidated damages and the completion date and no contract was ever signed. Later on, the parties had disagreements over the interim and final certificates.

The claimant launched the adjudication claim for the balance based on the last certified sum, plus amounts in four further invoices. The adjudicator decided that the defendant were due to pay the claimant.  The  defendant wrote to  the adjudicator that there was no intention to be bound by the terms of the Minor Works contract and on that basis there was no adjudication agreement in force between the parties, Statutory adjudication did not apply as the defendants were residential occupiers and.  The claimants applied for summary judgment to enforce the adjudicator’s decision.

The problem for the Deputy High Court Judge, Mr Andrew Bartlett QC, was that without fuller evidence from both sides, in particular of the discussions lying behind the emails, he found it impossible to say whether the parties did or did not reach a stage where they agreed with contractual effect to the application of the Minor Works terms, with gaps where particular options were not filled in or agreed. Given that it could not be confidently decided without the full evidential picture, he was not in a position to grant summary judgment to the claimants for enforcement of the adjudicator’s decision

The Judge referred to RTS Flexible Systems Ltd v Molkerei Alois Müller GmbH & Co KG [2010] UKSC 14, [2010] 1 WLR 753 where “the High Court found that a contract had been concluded which excluded the standard form conditions which had been proposed, the Court of Appeal disagreed, finding that there had been no contract, and the Supreme Court disagreed yet further, concluding both that there was a contract and that it included the standard form conditions”.

While Mr Andrew Bartlett QC had sympathy for claimant, as there was no clear reason for non-payment, it was not possible to make a finding without hearing evidence from both sides and thus the decision could not be enforced. The Judge reached “this conclusion with a degree of regret” and made clear that if he could find the Minor Works contract was agreed there would be no reason to disregard the adjudication clause and that the defendant’s challenge to the adjudication on the basis a final account had been issued would fail. Interestingly, Mr Andrew Bartlett QC noted that “the provisions of the Minor Works form constitute a carefully designed package which, when properly filled in, sets an agreed balance of costs, liabilities and risks.”

The practical effect of this case is that there is little to be gained by contractual uncertainty,  as  it  is impossible to accurately predict  which  side  of  an argument you may end up on – and it is far more time and cost-effective to have such uncertainty removed by a properly executed contract.