Delta Fabrication & Glazing Limited (“Delta”) sought summary enforcement of an adjudicator’s decision. Watkin Jones & Son Limited (“Watkin”) alleged that the adjudicator did not have jurisdiction as Delta had referred disputes under two separate contracts to the adjudicator in the same adjudication. It was agreed that, if the referral did concern disputes under two separate contracts, the adjudicator did not have jurisdiction and the decision should not be enforced. 

The parties entered into two sub-contracts for works at a student accommodation project. One sub-contract related to cladding, the other related to roofing works. From February 2020, the parties began administering payment for both contracts together, which included the final account procedure.

A dispute arose over the final account and Delta referred the dispute to adjudication. Delta sought to enforce the adjudicator’s decision, alleging that the award was valid because the parties had agreed, by their conduct, to combine the agreements into one contract.    

The Judge noted that, in order to decide in Delta’s favour, she would have to be satisfied that the parties’ conduct was unequivocal and consistent only with the parties having agreed to vary the contracts so that a single contract came into existence. In this instance, the contracts were separate written documents and the Judge would need to be satisfied that the parties had agreed that the contracts would be amalgamated. 

In this case, the evidence suggested that Delta wanted the payment applications to be combined but not the contracts. The payment notices, by way of example, contained references to the subcontract orders and the supporting documentation did not confuse or amalgamate the contracts but rather dealt with them separately and combined the total. The Judge noted that combining payment applications was not the same thing as combining contracts into one.  

Delta further argued that Watkins were estopped from denying that there was a single amalgamated contract, alleging that Watkin’s conduct amounted to a representation that the contracts were to be treated as one agreement. The Judge also rejected this argument, holding that the essential elements of estoppel were not present in this case. The application for summary judgment was dismissed.