This case was an appeal from the first instance decision of His Honour Judge Thornton. In that case the Judge considered two jurisdictional challenges raised by the Defendant. First, that there was no construction contract in writing, and second, if there was, then it was a different contract such that different adjudication rules applied and therefore the Adjudicator did not have any jurisdiction. The Claimant argued that the contract was under the JCT Standard Form of Prime Cost Contract 1998, while the Defendant contented that the contract was based upon a standard form that they had proposed. This "battle of the forms" raised the issue as to the appropriate terms that might apply to any construction contract, providing that a construction contract had of course formed.

Lord Justice May considered that this was on over-simplification of the facts, and that there was a third realistic possibility that had been advanced by the Defendant. Namely, that there was no contract at all, so that the Claimant was due to be paid a reasonable sum. If there was no contract, then there could be no contract in writing for the purpose of the Act such that the Adjudicator could not obtain jurisdiction under the Scheme. Further, the determination of the applicable terms had an effect on the amount that could be claimed pursuant to those terms.

Lord Justice May held that the Judge had based his decision on the premise that both parties had agreed that their relationship was governed by a construction contract, and therefore all that was to be done was to determine the terms of that contract. Lord Justice May considered that this was wrong and that the parties had not agreed that there was a construction contract. He stated at paragraph 32:

"Mr Hyam submits that, where the factual matrix demonstrates an intention on both sides to be bound by written contractual terms of a building contract, the subject matter of which is certain and evidenced by extensive communications between the parties; where the work is complete but there remains a residual dispute as to the terms under which the work was carried out, an adjudicator or judge is entitled to conclude that there is no realistic prospect of the defendants establishing that there was no contract in existence, and thus no jurisdiction of the adjudicator to adjudicate. I agree that a judge would be entitled so to conclude in appropriate circumstances, but I do not consider that these are such circumstances. It seems to be at least arguable either that there was a contract here, but upon JCT Prime Costs Terms, or, perhaps more likely, that there was no concluded written construction contract. The judge's recitation of the facts and the analytic contortions evidenced in paragraphs 30 and 31 of his judgment, including his characterisation of the situation as "a construction contract whose terms cannot be readily ascertained" suggests to me a real possibility that there was no written construction contract."

He did not accept that the identification of the precise terms of the construction contract was a "matter of detail which did not impinge the existence of the contract...". A submission that Lord Justice May considered was "palm tree contractual analysis."

The appeal was allowed and the Judge's order set aside. Lady Justice Hale agreed, as did Mr Justice Hooper. Lady Justice Hale added:

"...my view is that the most likely analysis of the legal relationship between the parties was either a contract or a quasi-contractual claim under which, the price not having been agreed, a quantum meruit was payable. Neither of those analyses is a contract in writing under the Section 107, and accordingly Section 108 did not apply"