NEWS Invalidly appointed


adjudicators Kasia Dickson, Legal Assistant at Thomas Eggar, discusses how an invalidly appointed adjudicator may mean injunction to stop adjudication


Earlier this month the TCC granted an injunction to prevent a party from pursuing an adjudication because the adjudicator was invalidly appointed (Twintec Ltd v Volkerfitzpatrick Limited [2014]).


n this case the works were carried out pursuant to a letter of intent without the contract ever being signed. When Volkerfitzpatrick started adjudication Twintec applied for an injunction to stop it. The case underlines the importance of making sure that a proper contract is signed. It also makes clear that a party seeking an injunction to restrain adjudication proceedings has to overcome number of obstacles. Twintec was a sub- contractor engaged by Volkerfitzpatrick to construct the floor slabs for a warehouse. The letter of intent specified that Twintec was to carry out the works “in accordance with”, amongst other documents, the DOM/2 form of sub- contract.


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Accolade Wines, for whom the warehouse was build, started proceedings against Volkerfitzpatrick, claiming £170m because of alleged defects and damage to the warehouse. Twintec was only joined as a party to these complex multi-party proceedings in August 2013. Volkerfitzpatrick sought to recover the costs incurred in testing the slabs and sought


to from Twintec. An adjudication was started for £850k and an adjudicator appointed by the President of RICS. Volkerfitzpatrick argued that the letter of intent incorporated the DOM/2 terms. Twintec agreed that the letter of intent was a binding contract but that the Dom/2 terms were not incorporated. Therefore the appointment of an


adjudicator under the Dom/2 was a nullity.


The court held that the letter was a free-standing contract as it contained sufficient information about the time, works and remuneration. On the facts, the DOM/2 has not been incorporated as a whole into the letter.


It was not necessary to incorporate DOM/2 in terms of adjudication because the letter of intent was a separate contract to which the provisions of the Scheme for Construction Contracts would apply. However, the court held that an adjudicator cannot be validly appointed under a contractual provision that does not exist as the validity of the procedure for nomination of the


adjudicator went to the heart of his jurisdiction. It is irrelevant that if the adjudicator was appointed pursuant to the scheme the same nominating body could have been asked to make the appointment.


Injunctions are used sparingly and will only be granted in exceptional


Kasia Dickson Legal Assistant, Thomas Eggar


circumstances. The fact that a referral to adjudication is brought in parallel with existing litigation is not in itself a ground for restraining the adjudication. Further, any additional pressure on legal advisers, additional costs, duplication and use of resources are not alone a sufficient basis to grant an injunction - this is “a burden that parties to a construction contract sometimes have to accept”.


The court will not allow an adjudication to continue in circumstances (such as those in this case) where the decision the adjudicator would be incapable of enforcement.


The decision delivers a pragmatic result. It reminds us all that letters of intent pose many risks and


uncertainties. Further a letter of intent with an obligation to perform the works “in accordance with” contractual documents may well be insufficient to incorporate the terms of the contract into the letter of intent. 


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