Case 5: Delta Fabrication & Glazing Ltd v Watkins Jones & Son Ltd [2021] EWHC 1034 (TCC) HHJ Sarah Watson - Jurisdiction - dispute arising under separate contracts It was common ground that Delta entered into two subcontracts with Watkin Jones: one for cladding and one for roofing works. Each subcontract had its own order number and detailed documentation. From February 2020, payment under the two subcontracts was administered together. Subsequently, a final account sum was agreed for both subcontracts together. A dispute arose over the final account which Delta referred to adjudication. Watkin Jones challenged the adjudicator’s jurisdiction contending that as the dispute arose under two separate contracts it could not be referred to adjudication under the Act. They did not give the adjudicator power to decide his own jurisdiction but they put forward reasons why he should resign. The adjudicator made a non-binding decision and proceeded with the adjudication. He was persuaded that by reason of there being an agreement to a single final account figure for both subcontracts, the parties had agreed to treat them as one.
(1) There was an agreement to be implied from conduct to vary or amalgamate the contracts.
Held: The parties’ conduct was inconsistent with amalgamation. Payment applications and the final account showed the sums due under each of the two subcontracts albeit totalled together. (2) That it was possible for parties to agree to treat two separate contracts as one for the purposes of the Act and therefore
adjudication, where, as here, they had combined payments claimed and due in applications and the final account.
Held: the argument was without authority and where the contracts had not been amalgamated at common law they could not become a single “construction contract” under the Act.
(3) Watkins Jones was ‘estopped’ from denying the subcontracts should be treated as one.
Held: The elements of estoppel were not present; there was no evidence of reliance by Delta or of detriment to them. Watkins Jones had not only a real, but a strong prospect of success at trial. Application for summary judgment refused.
Delta’s application to enforce the award in its favour, rested on three alternative arguments:
6
Made with FlippingBook Digital Publishing Software