CNA provided quantity surveying services in relation to the refurbishment and extension of a house. Holbeton purchased the property from Bright Services Limited. CNA proposed its terms for its engagement to Bright. Bright accepted these terms. The first invoice was addressed to Bright who requested it to be reissued to Holbeton c/o Bright. The next four invoices were similarly addressed.

Holbeton’s solicitors then wrote to CNA enclosing a standard form of appointment. CNA suggested amendments. Subsequent invoices were addressed to Holbeton c/o Bright. No appointment was concluded.

Three years after the project ended, CNA wrote to Holbeton seeking payment of the balance of its fees. CNA were successful at adjudication, arguing Bright acted as Holbeton’s agent. Holbeton argued there was no contract between it and CNA (as the contract was in an exchange of letters between CNA and Bright) and that Bright had no actual or ostensible authority to conclude a construction contract on its behalf. Holbeton argued it had effectively reserved its position on jurisdiction and did not give the Adjudicator jurisdiction to determine his own jurisdiction and, if that is right, there was a clear arguable defence.

The Judge held that Holbeton had reserved its position by the wording it used in its Response asserting that the Adjudicator did not have jurisdiction for a number of reasons. Viewing the wording used objectively, there was no doubt that Holbeton was effectively saying that it believed the Adjudicator did not have jurisdiction and this was good enough to make an effective reservation of its position on this point. Although some of the contractual and jurisdictional issues overlapped, Holbeton was differentiating between these issues. Therefore it was unnecessary to consider whether the parties agreed to give the Adjudicator jurisdiction to decide his own jurisdiction. Further, even if the Adjudicator was given this jurisdiction he did not exercise it. It was not possible to determine on a Summary Judgment application whether Bright had acted as an agent for Holberton.

In relation to the issue of whether there was a contract, the Judge held that this was a triable issue and granted leave to defend on the condition that Holbeton paid the adjudication sum into court within 14 days.