The Claimant, Joinery Plus Limited, carried out joinery subcontract work for the Defendant, Laing Limited, under two separate and unrelated subcontracts. A number of disputes arose and were referred to adjudication. One of the contracts was on a heavily amended version of the DOM/2 Conditions, 1981 Edition incorporating amendments 1 to 6 for work to the Stakis London Metropole Hotel. The second was for the Old Admiralty Building, New Road, London in the form of the JCT Works Contract, 1998 Edition.

A dispute in respect of alleged under valuation of the Old Admiralty Building work was referred to adjudication. An adjudicator nominated by the RICS decided that the sum of £85,283.80 should be paid to Joinery by a decision dated 8 May 2001.

In respect of the DOM/2 contract a separate dispute was referred to adjudication. In that adjudication Joinery claimed a global sum of nearly £700,000. The RICS appointed the same adjudicator, and he issued a decision dated 6 August 2002 stating that Laing should pay Joinery £58,107.15 plus interest and VAT. Laing paid the decision in full. Joinery wrote to Laing stating that the cheque was accepted, but only on account generally towards its overall entitlement for loss and expense as the Adjudicator's decision had not decided the questions referred to him. Laing responded stating that payment had been made in settlement of all issues which had been considered by the Adjudicator.

The basis of Joinery's allegation was that the reasons accompanying the Adjudicator's decision stated that the subcontract incorporated the JCT Works Contract terms, whereas the relevant conditions were in fact the amended DOM/2 subcontract conditions. During the ensuing correspondence the Adjudicator accepted that his decision had erroneously referred to the wrong subcontract conditions, but considered that the outcome would be the same, and also offered to correct the errors. Joinery invited Laing to agree to a fresh adjudication on the same issues. Laing declined, arguing that the decision was valid. However, on 16 November 2001 an administration order was made and two administrators were appointed by the Court.

A variety of issues arose:

1. Was any part or all of the Adjudicator's decision of 6 August 2001 a nullity?
2. Had Joinery affirmed the decision by accepting payment?
3. Could Joinery start a fresh adjudication in relation to the same dispute?
4. Could the Court impose a condition that Joinery must repay Laing before commencing a fresh adjudication.
5. If the condition could be imposed, but Joinery's administration made it impossible to make repayment then could Joinery make a fresh referral to adjudication in any event?
6. What relief or declaration could the Court provide, given the answers to 1 to 5 above?

The key issue was whether the Adjudicator's decision was a nullity because he had referred to the wrong subcontract conditions. HHJ Thornton QC contrast this case with the Court of Appeal decision of C&B Scene Concept Design Limited v Isobars Limited [2002] BLR 93 CA. In that case the Court of Appeal held that the Adjudicator's jurisdiction derived from the dispute referred to him. The dispute referred related to entitlement to interim payments, even though the Adjudicator had applied a contractual term, which did not form a part of the contract. The remaining provisions of payment were effective, and so therefore was the decision. However, in this case the reference to the wrong contractual terms was so fundamental that the decision was incapable of being remedied by the implied power to correct accidental slips. The decision was therefore a nullity.

Second, the acceptance of the cheque by Joinery was qualified, and so Joinery were not taken to have fully and finally accepted or approbated or settled the underlying dispute (see Court of Appeal in Stour Valley Builders v Stuart).

Third, given that the decision was a nullity, there could be no doubt that Joinery could start a fresh adjudication on the same issues.

Fourth, Laing claimed repayment on the basis of a mistake of fact. HHJ Thornton QC considered that if there were a mistake it would have to have been one of law, but he did not consider that there was a mistake in respect of the payment. If there were a restitutionary entitlement to repayment it would be because of a total failure of consideration. However, as Laing had not put forward any reasons for disputing or challenging Joinery's underlying entitlement they were not entitled to recover the sum.

Finally, Joinery's administration was significant, as no proceedings could be commenced or continued against the company without the consent of the administrators or the leave of the Court pursuant to the Insolvency Act 1986. The guidelines set out in Re Atlantic Computers PLC [1992] Ch 505 were considered by HHJ Thornton QC who noted that Laing had made out a weak case for leave, leave was likely to impede the administration, and Laing have never sought repayment of the money. HHJ Thornton QC came to the conclusion that whilst Laing had permission to apply for leave to commence an action against Joinery, that permission was refused.