Bennett (Electrical) Services Ltd were engaged by Inviron Ltd, a mechanical and electrical contractor, to carry out the installation of electrical works. A dispute arose during the course of the works, and Bennett referred the dispute to adjudication. The defendant asserted that as the letter of intent was headed "subject to contract", there was no contract between the parties and the adjudicator did not have jurisdiction as the agreement was not compliant with s.107 of the Housing Construction and Regeneration Act 1996. The adjudicator agreed and the adjudication did not proceed.

The claimant then commenced a second adjudication in relation to the same dispute. The second adjudicator ruled that he did in fact have jurisdiction and awarded the claimant £253,748 plus VAT and interest. The defendant maintained his previous position that the adjudicator did not have jurisdiction and did not pay any part of the sum. Bennett sought to enforce payment of the adjudication award by way of summary judgement.

HHJ Wilcox held that there was no contract, as the letter of intent was clearly stated to be "subject to contract" and the parties did not intend for it to have a contractual effect. In his judgement, he considered the case of RJT Consulting Engineers Ltd v DM Engineering Ltd where it was held that the whole contract had to be evidenced in writing, not merely part of it, in order to fall within the requirements of s.107(2)(b). He also noted his preference for the minority view of Auld LJ in the RJT case. HHJ Wilcox stated that:

"The reasoning of Auld LJ is attractive because at the subcontractor level and where cash flow difficulties are likely to be encountered in smaller projects, the paperwork is rarely comprehensive. The extent of the requirement for recording contractual terms for an agreement to qualify under s.107 laid down by the majority could have the effect of excluding from the scheme a significant number of those whom the Act was perhaps intended to assist."

However, HHJ Wilcox was bound to follow the majority judgment that 'it is not sufficient to show that all terms material to the issues under Adjudication have been recorded in writing. An agreement is only evidenced in writing for the purposes of s107 (2), (3), and (4) if all express terms of that agreement are recorded in writing.'

Here the letter of intent referenced a meeting where essential terms such as payment, working hours, variations, and insurance were discussed though not recorded. HHJ Wilcox held that the material terms were 'incomplete' and therefore, as the agreement was not compliant with s.107, the adjudicator had no jurisdiction. The application for a summary judgement was dismissed.