ADJUDICATION
In January, the English Technology and Construction Court refused to enforce an adjudication decision worth over £2m, on the grounds that there was a real prospect that the contractor’s claim was based on a contract that may never have existed. High Tech Construction Limited v WLP Trading and Marketing [2026] EWHC 152 (TCC) provides important guidance on when disputes about the underlying contract go to the heart of the adjudicator’s jurisdiction, rather than being a matter of substance that the adjudicator can determine.
High Tech Construction Limited (HTC) carried out construction works at a London residential development owned by WLP Trading and Marketing (WLP). HTC referred a payment dispute to adjudication and obtained a decision for c. £2.1m. It claimed that the works were governed by a JCT D&B subcontract purportedly executed in January 2023.
The adjudicator, appointed via a RICS nomination, had rejected WLP’s objections during the adjudication and proceeded to make a decision.
WLP resisted enforcement, contending that the purported contract had never been agreed and that HTC’s reliance on the purported contract was fraudulent. WLP’s case was that the parties had instead operated under informal oral and WhatsApp-based arrangements for enabling works, followed by a simple lump sum agreement for reinforced concrete frame works only, valued at £1.2m. This was significantly less than the JCT contract sum of c. £2.4m.
The adjudicator, appointed via a RICS nomination, had rejected WLP’s objections during the adjudication and proceeded to make a decision.
HTC approached the TCC to enforce the decision. WLP resisted enforcement, among other challenges, on the grounds of lack of jurisdiction.
Resultantly, the issues before the TCC were:
- Whether the dispute about which contract governed the works was a jurisdictional matter (not binding on the parties) or a substantive matter (binding pending final determination)?
- Whether WLP had a ‘real prospect of success’ in establishing that the JCT contract did not exist?
The TCC judge reviewed the extensive case law on contract formation challenges to set out the following principles:
- Where parties are agreed on a foundational contract, but the defender challenges the scope of the dispute or the procedure followed for the reference, this is generally a substantive matter within the adjudicator’s jurisdiction.
- Where there is a fundamental dispute as to the very existence or essence of the contractual arrangement under which the adjudicator is appointed, this goes to ‘the heart of the jurisdiction’ and the adjudicator’s decision on that point does not bind the parties.
- Courts must examine jurisdictional challenges critically but must not lose sight of the principle that a construction contract must exist for the adjudicator to have jurisdiction under that contract.
- The judge concluded that this case fell on the ‘existential’ side of the line. If WLP was correct, the contract under which the adjudicator was appointed simply did not exist. Even though both parties’ competing contractual theories would have resulted in the scheme applying, this was not an answer to the foundational question of jurisdiction.
The judge found that WLP had a real prospect of proving that the purported JCT contract never existed. This was on the basis of documentary evidence produced by WLP, including: (a) independent meeting minutes from June 2023 noting that there was ‘no JCT or equivalent contract available for review’; (b) metadata analysis of the purported contract showing that the document file was created in June 2023 (while HTC alleged that it was executed in January that year) and (c) handwriting evidence casting doubt on the authenticity of the signature on behalf of WLP.
This decision is a reminder whilst adjudicators frequently face challenges to their jurisdiction and generally can and should investigate such challenges, their conclusions on jurisdictional issues will only bind the parties if there is no real dispute about the very existence of the underlying contract.
If the responding party raises a challenge to the existence of the underlying contract during an adjudication, it should not be lightly dismissed as a tactical manoeuvre.
For adjudicators, the practical takeaway is that where a respondent raises a genuine dispute about the very existence of the contract on which the claim is based, rather than merely its terms or scope, any decision reached may prove unenforceable. Adjudicators should document their reasoning on jurisdiction carefully but must recognise that such a decision will not prevent subsequent challenge.
Finally, for referring parties and those advising referring parties, the judgment highlights the risk of proceeding to adjudication where contract formation is genuinely in dispute. Further, if there are multiple contractual arrangements between the parties, it is important to consider which contract the dispute has arisen under and to appoint the adjudicator under that contract.
If the responding party raises a challenge to the existence of the underlying contract during an adjudication, it should not be lightly dismissed as a tactical manoeuvre. As this judgment demonstrates, the court will examine such objections carefully and a well-evidenced challenge can defeat enforcement of the decision entirely.