Expert Witness Journal Issue 66 April 2026 - Flipbook - Page 86
Adjudication: Does the contract
exist…and does it matter?
by Claire Kilpatrick, Managing Associate at Stevens & Bolton.
was that the contract pursuant to which the
adjudicator had been appointed did not actually
exist and therefore the adjudicator had no
jurisdiction to act in connection with this
dispute.
In an ideal world, before the start of any construction
project, the parties would sign written contracts,
clearly setting out all of the agreed terms between
them. However, in reality, many works start before an
agreed contract is in place. During the works there
may be subsequent negotiations over contract terms
between the parties which may or may not result in
a signed contract or contracts. This unfortunately
leaves room for future disputes over obligations,
scope and fees…but what about the fundamental
existence of a contract? In the recent case of
High Tech Construction Ltd v WLP Trading and
Marketing Ltd [2026] EWHC 152 (TCC) the court
was required to consider whether the adjudicator
had jurisdiction to decide a dispute in circumstances
where one party argued that the contract pursuant
to which he had had been appointed did not in fact
exist.
•
The adjudicator determined that he had
jurisdiction to continue with the adjudication
on the basis of the evidence before him at
that time. WLP continued to participate in
the adjudication under a reservation of rights
and the adjudicator awarded HTC the sum of
£2,142,623.35 (plus interest) representing the
balance due for the works completed by HTC.
•
HTC subsequently attempted to enforce
the adjudication award by way of summary
judgment in court. WLP resisted enforcement
on the basis that the JCT Sub-contract had been
drafted for funding purposes only, had never
been agreed as the basis of the works, had not
been signed by the individuals and on the date
as contended by HTC and therefore has never
been formed i.e. brought into existence. During
the enforcement proceedings, WLP put forward
evidence that works were actually carried out
under two entirely di昀昀erent contracts between
the parties.
Background
•
High Tech Construction Ltd (HTC) carried out
some construction works for WLP Trading and
Marketing Ltd (WLP) between early 2023 and
July 2024.
•
Following completion of the works HTC
commenced a ‘true value’ adjudication for
alleged unpaid sums in connection with the
works. The adjudicator was appointed following
nomination by RICS by virtue of the adjudication
provisions in a JCT D&B Sub-contract, which
HTC said was the relevant contract for the
works and had been executed at a meeting on
26 January 2023, and later circulated by WLP by
email in June 2023 (the JCT Sub-contract).
•
Key issues
The full judgment includes lots of interesting detail
and discussion around the relevant case law and
precedents, but in summary, key issues included the
following:
WLP raised a jurisdictional challenge and
argued that the JCT Sub-contract was “not the
genuine and binding agreement between the
parties” and that it had been “fabricated and
altered or misrepresented in a matter which
amounts to fraud”. In short, the argument
EXPERT WITNESS JOURNAL
84
1.
Did the adjudicator have jurisdiction to decide
the dispute if the speci昀椀c JCT Sub-contract did
not exist?
2.
Did it matter/was it relevant if the JCT Subcontract did not exist in circumstances where
the alternative contracts pleaded by WLP would
have resulted in a referral to an adjudicator
using the same procedure?
APRIL 2026
