Euro Construction Scaffolding Ltd v SLLB Construction Ltd [2008] EWHC 3160 (TCC)

This summary was provided by CMS Cameron McKenna LLP.

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Courts and adjudicators alike are encouraged to examine critically assertions that adjudicators lack jurisdiction.  In this case the defendant argued that the adjudicator had had no jurisdiction because the contract was not a contract in writing for the purposes of the Housing Grants, Construction and Regeneration Act 1996.  The court held that the defendant had no real prospect of establishing this and accordingly enforced the adjudicator’s award.

Mr Justice Akenhead, Queen’s Bench Division, Technology and Construction Court


In May 2006, SLLB engaged Euro under a written contract to provide scaffolding to a house (“the May Contract”).  SLLB paid for these works in September 2007.  SLLB later became concerned about the stability of certain basement excavations carried out for the addition of a swimming pool and were advised by a third party that “bird cage” scaffolding was required.  SLLB contacted Euro accordingly, who visited site in December 2007 to determine whether it could solve the problem.  Euro provided a written quotation on 14 December (“the Quotation”) for certain scaffolding (though the term “bird cage” was not used) (“the Pool Contract”).  According to SLLB, it had asked Euro on the telephone later that day “to confirm that [Euro] could provide a sufficiently robust solution to hold back the earth and allow [SLLB] to build the basement safely” and Euro had said that it “could”.  It was agreed that SLLB accepted the Quotation orally and Euro carried out the works.  The pool scaffolding subsequently buckled and had to be removed for safety reasons.  SLLB refused to pay Euro’s fees so Euro commenced adjudication proceedings in August 2008.

Initially Euro did not mention the Quotation at all, but argued that the pool scaffolding works were a variation to the May Contract.  SLLB challenged the Adjudicator’s jurisdiction on the basis that the May works were fundamentally different to the pool works and there was no contract in writing (as defined by s 107 of the Housing Grants, Construction and Regeneration Act 1996 (“the Act”)) for the pool works.  Euro then introduced the Quotation into evidence and argued that it evidenced the Pool Contract in writing in compliance with s 107.  This was done with SLLB’s agreement by letter dated 16 September, but without prejudice to SLLB’s right to raise jurisdictional objections as it saw appropriate with regard to the writing requirement.

On 18 September the Adjudicator noted SLLB’s reservation of its rights.  On 19 September SLLB asserted (without repeating this reservation) that the Quotation was not a contract in writing for the purposes of s 107 because the telephone conversation on 14 December constituted agreement of an oral term that the scaffolding would be fit for its purposes (i.e. a sufficiently robust solution to hold back the earth and allow SLLB to build the basement safely) and the Quotation did not evidence that term in writing.
The Adjudicator decided he did have jurisdiction on the basis that the statements on 14 December were “mere representations” not terms.  In any case he formed the view in the substantive decision that the statements alleged by SLLB were never made and the Quotation never offered to provide a “bird cage” scaffold; accordingly he gave judgment in Euro’s favour.  SLLB failed to pay so Euro commenced enforcement proceedings.


SLLB opposed enforcement arguing that the Pool Contract was not a contract in writing under s 107 of the Act and the Adjudicator accordingly had no jurisdiction.  There were 2 issues:

  • Whether the parties (in particular SLLB) had given the Adjudicator jurisdiction to make a binding decision on his own jurisdiction and


  • If not, whether the Adjudicator had jurisdiction in any event?


The parties, and in particular SLLB, had not given the Adjudicator jurisdiction to decide the question of his own jurisdiction.  SLLB had clearly and fully reserved its rights to make jurisdictional objections in relation to the Pool Contract by its letter dated 16 September (which position was clearly recognised by the Adjudicator in his letter of 18 September).  The fact that the 19 September letter did not repeat this reservation was immaterial.

However, the judge noted that the courts should critically examine allegations that adjudicators lack jurisdiction (as should adjudicators), and held that the Adjudicator did in fact have jurisdiction in this case.  SLLB had based its case on the telephone communication it alleged took place on 14 December.  Yet the statements alleged to have been made during that call were phrased in terms of what Euro “could” do, not what it “would” do – this was merely a communication of the purposes, not the language of agreeing an express and binding term.  It was for SLLB to show that it had a real prospect of establishing its case on the point relied on to oppose enforcement (here, the existence of the oral term).  On the written evidence before it the Court concluded that it had not done this and awarded summary judgment to Euro.  

This summary was provided by CMS Cameron McKenna LLP.

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