Cubitt Building and Interiors Limited ("Cubitt"), as main contractor, engaged Richardson Roofing (Industrial) Limited ("Richardson") as its roofing subcontractor.

This was a battle of the forms. The parties disagreed on which terms and conditions were incorporated into the Subcontract. Richardson argued that the Subcontract incorporated the DOM/1 terms and conditions whilst Cubitt argued that its own standard terms and conditions were incorporated (which did not provide for arbitration). Before the works commenced, the parties met and exchanged an invitation to tender, quotation, revised quotations, a letter purporting to be a letter of intent and a formal subcontract order.

Richardson commenced an arbitration relying on DOM/1 and Cubitt brought these proceedings seeking, primarily, a declaration that the Subcontract did not contain an arbitration agreement and incorporated Cubitt's terms and conditions.

The Judge held that the Subcontract incorporated the DOM/1 provisions even though all the options within it had not been selected. In relation to the claim for a stay for an adjudication, as a matter of construction both of the DOM/1 contract conditions and the 1996 Act there was no pre-condition or indeed obligation requiring either party to refer any disputes to adjudication. There was simply a right on a party to proceed to adjudication at any time.

The Judge referred to the case of DGT Steel v Cubitt. The Judge held that this case was primarily concerned with what a Court would do when faced with a binding agreement to adjudicate. There was no such binding agreement in this case. In relation to a stay being available, the Judge stated:

"Of course, it is open to any party to apply for relief to the requisite tribunal to enable it to exercise its right to adjudicate. I do not accept however that there must be a stay of any legitimately constituted proceedings, whether in arbitration or in court proceedings, where there is merely a discretionary right to adjudicate as opposed to a binding pre-conditional adjudication requirement. I suspect that what the learned judge and author really intended was that the proceedings in question, in terms of timetable and the like, should not be so conducted as to prevent a party from pursuing its contractual or statutory right to adjudicate. Thus, it may be appropriate in certain circumstances to build into the timetable in court or arbitration proceedings a 28 day period to enable one party to adjudicate if, for any good reason, it cannot sensibly pursue adjudication at the same time as its court or arbitration proceedings. Thus, having regard to the Overriding Objective, if the Court believes, following representations, that there is a measurably good prospect that adjudication will finally resolve the disputes or some of them the court may well build into its timetable for trial some time to enable a party to adjudicate. That however is different from a stay. A party who has started court or arbitration proceedings is entitled to have those proceedings resolved as reasonably expeditiously as the Court can achieve and justice demands; it should not be forced to have those proceedings delayed or stayed by it itself being forced to adjudicate when it does not want to exercise its right to do so.
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However, the question of whether or not there should be a stay is not a matter which this Court can consider. Richardson effectively seeks to argue that any dispute between the parties as to whether or not there should be a stay is entirely a matter for the arbitrator. I agree; this aspect of the matter is part of the dispute and timetabling referred to arbitration. If this matter proceeds in arbitration, the arbitrator is entitled to lay down a timetable as he or she thinks fit. The arbitrator may have regard to the contents of this judgment as to what is appropriate in terms of any timetabling to enable Cubitt to adjudicate if it really wishes to do so but he or she is not bound by the views which I have expressed."