Interior Dimensions Contracts Limited ("IDC") was the main contractor on a project to build Leigh Medical Centre at Leigh-on-Sea in Essex. In July or August 2006 IDC engaged OSC Building Services Limited ("OSC") to carry out various drainage and site access works. The scope of work was subsequently increased, and OSC were also engaged to install a retaining wall and site mat and to reposition a sump tank.

Prior to the completion of the works, in June 2007, OSC sent through application for payment number 10, which was referred to as the draft final account. Negotiations commenced and on 20 May 2008 IDC gave their revised final account figure of £283,202.05. No further sums were paid by IDC. On 9 September 2008 OSC served a notice of adjudication. The adjudicator ordered that IDC make payment to OSC on 22 October 2008. IDC asserted that the award was invalid and unenforceable but paid OSC the sum of £10,641.01, part of which comprised 50% of the adjudicator's fees.

OSC issued enforcement proceedings. IDC submitted that the notice of adjudication did not allow the adjudicator to determine the value of the final account, but merely to decide on non-payment against IDC's certification. OSC argued that the whole of the notice of adjudication and referral were read in context with the relevant documents the dispute had not expanded. The Judge agreed that the dispute referred to adjudication was the question of what sum was due to OSC when the notice of adjudication was issued:

"(a) On my reading of the notice of adjudication and the referral the dispute being referred to adjudication was the question of what sum were due to OSC when the notice of adjudication was issued. Those documents have to be read in the context and against the background of the prior communications between the parties, which included the process of submissions, comments and assessments which had taken place by that time.
(b) The sum due to OSC comprised two parts: the sum due on the basis of IDC's assessment and an additional sum which OSC asserted was due. I consider that the reference to non- payment by IDC to OSC in respect of OSC's final account, in paragraph 3 of the notice of adjudication, encompasses both those sums, which were further identified in paragraphs (b) and (c) of the notice and the referral. In the absence of a withholding notice any sums due fell to be paid.
(c) I do not consider that the difference between the sums stated in paragraph (c) of the adjudication notice and those stated in paragraph (c) of the referral, can sensibly be said to expand the claim when the precise sum was left open by the words "or such sum as the adjudicator may decide"." (emphasis added)

The Judge also had to consider whether it was open to IDC to raise a jurisdictional argument in these enforcement proceedings that was not raised during the course of the adjudication. The Judge said that where a party submits to the jurisdiction of an adjudicator, without raising any objection, then the principles apply as set out in Westminster Chemicals & Produce Ltd v Eicholz & Loeser. Those general principles say that there must be a protest against the adjudication continuing and a protest to the effect that the adjudicator does not have jurisdiction to deal with a particular issue. If a party does not protest then that party accepts the submission of that particular issue to the jurisdiction of the adjudicator.

IDC also argued that the Adjudicator did not have jurisdiction to decide that the sum was due on the basis of an interim application. The sub-contract only provided for a final account after completion of the works but not expressly for interim payments. Whilst IDC submitted that this was in compliance with the Act, the adjudicator decided that it was not compliant and that the interim payment provisions of the Scheme applied. Therefore the adjudicator decided he was able to decide the value of the interim application.

The Judge held that even though the claim was referred to, inaccurately, as the final account, by looking at the contemporaneous documents, it was clear that the application being considered by the adjudicator was an interim application.

"Also, I note that during the period after interim application number 10 had been submitted then, despite it being referred to as a draft final account, IDC did make further interim payments 11 and 12 which shows that the developing final account was being treated as an interim application. The draft final account was therefore not the final account itself which it was envisaged would be provided by [OSC] at a later date.

In addition, the failure of the contract to provide a compliant mechanism for interim payment meant that the contract provided only for payment of a final account after completion. In such circumstances, I consider that [OSC] is right in [its] interpretation of what OSC and IDC were doing in the period between June 2007 and May 2008 in the light of OSC's entitlement to interim payments under the Scheme. It is, as [OSC] submit, the substance of what the parties were doing and not the label attached by them to those documents, that is of importance."

Accordingly, the Judge enforced the adjudicator's decision.