Vitpol sought three declarations in respect of the existence of the Contract, the Contract terms and that clause 9.2 of the IFC form (the adjudication clause) was incorporated into the parties' Contract.

Vitpol wanted to adjudicate the substance of its dispute. If Clause 9.2 was incorporated it would give Vitpol the right to refer its claims to adjudication. It was common ground that if Vitpol was wrong and it was not incorporated, or the terms of the IFC were incorporated but for clause 9.2, then Vitpol would not have the right to adjudicate because the building works related to a residential occupier and therefore is exempt from the statutory adjudication scheme.

An argument raised by Samen was that the TCC did not have the Jurisdiction to hear this matter as an adjudication had not been commenced as specified at paragraph 9.4.1 of the TCC Guide. Samen also argued that there were disputes of fact making the proceedings unsuitable for CPR Part 8 and that the Court should impose a one month stay to allow the proposed pre-action protocol meeting to go ahead.

Mr Justice Coulson held:-

1 That the Court's jurisdiction could not be defined by reference to the TCC Guide. Construing that document as if it were statute or as a contractual exclusion clause was incorrect. Rule 9.4.1 was intended merely to illustrate the point that in appropriate cases, the TCC may make Orders in a dispute where there is an ongoing Adjudication.

2 In any event, the Claimant is entitled to have the contractual issue resolved in advance of any subsequent Adjudication. In one sense it is more convenient for that point to be dealt with now rather than allowed to cause delay and possibly a procedural muddle when a reference to an adjudication is made.

3 As no specific factual disputes have been identified, as things presently stood it appeared to be a relatively straight forward matter where all or almost all of the relevant material was found in the contemporaneous documents. In the circumstances paragraph 3.3.2 of the TCC Guide would seem to apply in making this an appropriate claim for Part 8. Further there were a number of cases in the Courts in recent years in which the parties had agreed a hybrid between Parts 7 and 8 so as to ensure any necessary oral evidence could be accommodated within the final hearing. It was important that the procedure served the individual needs of the case rather than becoming the dominant issue of the Proceedings.

4 It did appear that unnecessary costs were incurred as a result of the decision to embark on a 9 month pre-action protocol process dealing with all matters only for the Claimant now to require the Court and Defendant to focus solely on the contractive elements of the dispute. However if the Court refused to allow the Claimant to reduce the scope of the matters to be dealt with, if the pre-action process failed, it would be depriving the Claimant of its right or at least potential right to have its claim addressed in Adjudication. Critically if the Claimant has a right to Adjudicate then it is not for the Court to deprive the Claimant of that right.

5 As a consequence of this, Mr Justice Coulson would be vigilant to ensure that any costs orders made, reflect the conclusion that it would have been preferable for the court to deal with all the matters in dispute at once.

6 There would be no need for its stay because if the disputes were not quickly compromised after the meeting the proceedings should be moved forward as quickly as possible particularly given the leisurely way in which the pre-action protocol process had progressed thus far.