Volkerfitzpatrick Limited (“VFL”) was the main contractor for the construction of a warehouse and wine bottling plant near Bristol. By a Letter of Intent dated 5 October 2007, VFL selected Twintec Industrial Flooring (“Twintec”) to construct the floor slabs stating that it was not yet in a position to enter into a sub-contract. The LOI authorised Twintec to proceed immediately in accordance with certain documents which confirmed the parties’ agreement to use all the terms of the DOM/2 standard form of sub-contract. The dispute resolution clause in the DOM/2 standard form includes a list of adjudicator nominating bodies and provides that in default of the parties’ selection, the nominating body will be the President of the Royal Institution of Chartered Surveyors (“RICS”).

Twintec carried out the works under the LOI. The employer subsequently contended that the floor of the warehouse was unfit for purpose on a number of grounds and VFL arranged for the defects to be investigated and tested at a cost of around £850,000. VFL commenced adjudication against Twintec and submitted a request for the appointment of an adjudicator to the President of the RICS.

Twintec applied to the TCC for an order restraining VFL from pursuing the adjudication arguing that the adjudicator had been appointed under a provision that was not part of its agreement with VFL.

The Judge accepted that the LOI was a simple free-standing contract that would govern the parties’ legal relations until a formal sub-contract was entered into. The words "in accordance with" were to be given their natural meaning. However, as a matter of construction, secondary obligations within the DOM/2 conditions such as compliance with indemnity clauses and completing the dispute resolution clause were not incorporated into the LOI and equally were not necessary to give business efficacy to the LOI.

Thus, the adjudicator did not have jurisdiction to hear the dispute and the Judge granted an injunction to restrain VFL from continuing with the adjudication.