Swan Yard employed South to construct and fit out a retail shopping arcade and hotel. A dispute arose between the parties which South referred to adjudication. The parties had not concluded a written contract but proceeded on the basis of a JCT Management Contract. During the adjudication Swan Yard did not challenge the adjudicator’s jurisdiction on the basis of the lack of a written contract. The adjudicator investigated the matter of his own volition, but found that he still had jurisdiction to continue with the adjudication. Although he decided that there was no written contract between the parties he found that, "a contract arose either by oral agreement or by conduct or by a combination of oral agreement or conduct".”

The adjudicator subsequently awarded South £98,117.37. At the enforcement South conceded that in fact only £70,450.14 was owed to them.

Swan Yard, again, did not refer to the lack of a contract in writing. Instead, Swan Yard raised the following defences:

1. That, because there were separate final account proceedings ongoing in the Bristol District Registry, the enforcement should be stayed; and
2. South should have made further concessions, totalling £65,032, due to mistakes made by the adjudicator.

Firstly, the Judge discussed the issue of whether, despite Swan Yard not raising the issue of the lack of a written contract in either the adjudication or the enforcement hearing, the adjudicator’s decision could be enforced. He considered section 107(5) of the Construction Act:

“An exchange of written submissions in adjudication proceedings, or in arbitral or legal proceedings in which the existence of an agreement otherwise than in writing is alleged by one party against another party and not denied by the other party in his response constitutes as between those parties an agreement in writing to the effect alleged”

In applying this section, the Judge found that such an agreement should be implied and that therefore this would not prevent the Court from enforcing the decision. With regard to Swan Yard’s defences the Judge found that:

1. The ongoing final account proceedings had no effect on the enforceability of the adjudicator’s decision. He emphasised that the point of adjudication was that it was a temporarily binding decision unless and until the dispute was determined by arbitral or legal proceedings. The facts of this case encapsulated the intention of the statutory adjudication scheme; and
2. The Judge considered the individual mistakes alleged by Swan Yard, but found that these had no effect on the enforceability of the adjudicator’s decision. The adjudicator had not made any obvious errors. In any event, following the established case law, the adjudicator had answered the right question, and was entitled to make errors of fact or law so long as they did not breach the rules of natural justice.

Accordingly, after taking into account South’s concessions, the Judge enforced the decision.