Cain successfully brought an adjudication against Pennine in relation to two outstanding invoices (Invoices 3 and 4) for work done. Pennine paid the amount awarded by the Adjudicator for Invoice 3 without any admission of liability. The enforcement proceedings therefore only concerned Invoice 4.

Pennine argued that the Adjudicator lacked jurisdiction as the contract was not in writing such as to satisfy the requirements of s107. The Notice of Adjudication stated that the written terms of the contract were in Pennine’s purchase order and in an exchange of emails between the parties on the same date as the purchase order. In its Response, Pennine objected to the Adjudicator’s jurisdiction on the basis that Cain was purporting to rely on certain matters in its Response (and supporting witness statement) having been the subject of an oral agreement that was not reflected in the written terms of the contract. In its Particulars of Claim, Cain alleged that the contract was made by an exchange in writing and therefore fell within s107(2)(b).

The Judge held that there was no triable issue and Cain was entitled to summary judgment. The only material in support of a triable issue was that contained in the Referral Notice and its supporting witness statement attached to it. Cain now disowned both documents insofar as they suggest any terms were orally agreed. Pennine had always denied that any terms were ever agreed that were not put in writing. Therefore there was no real prospect of Pennine establishing at the trial of the claim that the Adjudicator did not have jurisdiction, even though the reason why he had jurisdiction had only become clear from the Particulars of Claim.

Thanks to Andrew Kearney for supplying this case.