The principal point in this case was whether a temporary stay should be granted to restrain court proceedings until an adjudication of an underlying dispute had taken place. The parties entered into a sub-contract in respect of Telephone House, London. Cubitt were Main Contractors, and DGT were Sub-Contractors. DGT referred to adjudication a claim for £193,850 plus VAT. The Adjudicator rejected the entirety of that claim. DGT then commenced proceedings in the TCC seeking £242,547 plus VAT and interest. The dispute focussed on the degree of overlap between the adjudication and the dispute now brought to the TCC.

Clause 19.1 of Cubitt's Standard Terms and Conditions stated:

"Any dispute, question or difference arising under or in connection with the sub-contract shall, in the first instance, be submitted to adjudication in accordance with the Association of Independent Construction Adjudicators (AICA) Adjudication Rules and thereafter to the exclusive jurisdiction of the English Courts." [emphasis added]

The contention was that if some aspects of the dispute were new, then they needed to refer to adjudication first before then referring any residual disputes to the Court.

HHJ Coulson QC considered that the words "plainly make adjudication in the first instance compulsory" (Para 15). This was as a result of the use of the word "shall". He considered the provisions workable, sensible and in accordance with the 1996 Act. The right was conferred not just upon the claiming party, but to both parties of the Contract. Much of the factual analysis on which the claim was based was substantially different. There was some overlap, but some aspects of the claim were new. Clause 19.1 required those new aspects to be referred to adjudication before a party could refer the matter to a Court.

The Court did have jurisdiction to grant a stay in those circumstances (see for example the House of Lords case of Channel Tunnel Group Limited -v- Balfour Beatty Construction Limited [1993] AC 334). A similar approach had been adopted in respect of referrals to expert determination (Cott UK Limited -v- FE Barber Limited [1997] 3 All ER 540).

Further, there had in any event been a failure to comply with the TCC Pre-Action Protocol. In those circumstances the Judge would have ordered a stay whilst that procedure was complied with. As the dispute related to a final account, a QS Adjudicator would most likely be a better tribunal than a judge for dealing with such a dispute. An adjudication may well also be cheaper than attending Court. Such an approach was not in breach of the Act, but supported the concepts of freedom of contracts. The parties agreed that disputes shall be referred to adjudication before submitting matters to the Court. A stay was therefore granted.