Ex Novo Limited v MPS Housing Ltd

[2020] EWHC 3804 (TCC) 

MPS sought to resist enforcement of an adjudication decision in the sum of £310k. The key issue was whether there was a single contract with multiple instructions under it or multiple contracts. MPS said that the adjudicator did not have jurisdiction as it was a reference of sums due under and of disputes in relation to multiple contracts rather than a single contract.

HHJ Eyre QC considered that the proper approach to take would depend on whether the reference to the adjudicator necessarily involved the adjudicator having jurisdiction to determine jurisdiction. If that was an integral part of the reference then the decision as to jurisdiction was unchallengeable. On the other hand, if it was only being determined as a preliminary to determination of the reference proper, then the decision of an adjudicator as to jurisdiction was not unchallengeable. 

Here, the adjudicator did have to make a decision as to whether there was a single contract or multiple contracts. This was for the purpose of determining whether they had jurisdiction and should proceed with the adjudication. However, the adjudicator did not have to determine that question in order to answer the substantive issue between the parties. That issue was the effect of the absence of a pay less notice. Therefore the decision of the adjudicator about their jurisdiction was potentially challengeable. 

This meant that HHJ Eyre QC had to consider whether there was a single contract under which the sundry works were performed or multiple contracts, or whether, on an application for summary enforcement, there was a real prospect that MPS would defeat the argument that there was a single contract.

The Judge said that the best guide to the parties’ intentions and to the effect of their dealings was the contemporary documents. Here they “strongly” and “persuasively” indicated that there was a single contract. There was no real prospect of a finding that there were multiple contracts. “Commercial common sense” suggested that what was happening here was that there was a single contract with the placing of orders under it, effectively a calling off of work on particular properties, with a subsequent variation reducing the discount applicable. This meant that the adjudicator was correct in that there was a reference under a single contract. Therefore, the decision was enforceable.

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