Expert Witness Journal Issue 66 April 2026 - Flipbook - Page 87
3.
By pleading alternative contracts on
enforcement, which had not been raised or
evidenced during the adjudication, was WLP
raising a new jurisdictional argument?
However, the court did not agree. The court held that
there must be a “foundational” contract in existence
pursuant to which the adjudicator was properly
appointed. Variations or changes or the precise
terms of that contract could then be a substantive
issue for the adjudicator to decide. But only if the
adjudicator had been correctly appointed in the
昀椀rst place. That was not the case here, despite the
fact that the contractual arrangements contended
included the same adjudication procedures. If the
JCT Sub-contract pursuant to which the adjudicator
had been appointed did not exist, that would be fatal
to the adjudicator’s jurisdiction.
What did the court decide?
The court addressed each of these points and
commented as follows:
1.
The existence of the JCT Sub-contract
Was the dispute about the existence of the JCT
Subcontract a jurisdictional issue or a substantive
issue? If it was jurisdictional, then it would go the
heart of whether or not the adjudicator had the power
to determinate the dispute, but if it was a substantive
issue then it would be within the adjudicator’s power
to decide. The court distinguished between “a case
where a contract is relied upon but is incorrectly
identi昀椀ed in one or more respects, and a case where
the contract relied upon never existed…”
3.
During the adjudication WLP had simply put forward
a position that the JCT Sub-contract did not exist.
However, during the enforcement proceedings, WLP
argued and put forward evidence that the works
had been carried out under two di昀昀erent contracts
(neither of which was the JCT Sub-contract). This
was an important point, because the authorities are
clear that relying on a new jurisdictional argument
on enforcement (that was not raised during the
adjudication) is not permissible.
The court held that in this case, this was a
fundamental dispute as to the very existence
of the contract. If WLP was correct, then the
contract pursuant to which the adjudicator had
been appointed did not exist and therefore the
adjudicator could not have been correctly appointed
and would have no jurisdiction to decide the dispute.
In such a case the court noted that “Providing that
the jurisdictional challenge has not been lost, if
the defendant’s argument in this respect has a real
prospect of success, summary judgment is likely to
be inappropriate.”
The court held that if WLP’s argument was that
the adjudicator lacked jurisdiction because the
correct contractual position involved more than one
construction contract, that would be a new argument
(not put before the adjudicator) which could not
form the basis for arguing against enforcement at
this stage. However, despite the new evidence put
forward by WLP during enforcement proceedings,
WLP’s argument essentially remained that the JCT
Sub-contract did not exist. That was a point which
was squarely put before the adjudicator and against
which WLP had not waived its rights. Therefore,
the court found that this was not a new or di昀昀erent
argument in respect of jurisdiction to that which
had been raised during the adjudication and WLP
was entitled to raise this as a jurisdictional challenge
against enforcement.
WLP had disputed the existence of the contract
during the adjudication and had not waived its rights
in that regard. It had also provided substantially
more evidence during the enforcement hearing
to evidence its alternative arguments on contract
formation. In the circumstances, the court found
that there was a real prospect that at a full trial WLP
could establish that the adjudicator was appointed
pursuant to a contract which did not exist.
2.
By advancing an alternative contractual
argument during the enforcement proceedings
which had not been put before the adjudicator,
was WLP relying on a new or di昀昀erent argument
in respect of jurisdiction?
Was the existence of the JCT sub-contract
relevant when WLP’s alternative pleaded
contractual arrangement would have resulted
in a referral to an adjudicator using the same
procedure as had already been used? I.e. did the
answer to point 1 above really matter?
HTC argued that in circumstances where the
alternative contracts relied upon by WLP were in any
event also construction contracts capable of giving
the same adjudicator jurisdiction to decide the same
dispute under the same procedure, the dispute
about the existence of the particular JCT Subcontract itself did not undermine the adjudicator’s
jurisdiction.
EXPERT WITNESS JOURNAL
85
APRIL 2026
