ORAL VARIATION OF CONTRACT DOES NOT UNDERMINE VALIDITY OF CONTRACTUAL ADJUDICATION

Treasure & Son Ltd v Dawes [2007] EWHC 2420 (TCC), 25 October 2007

In Treasure & Son Ltd v Dawes [2007] EWHC 2420 (TCC), 25 October 2007, Mr Justice Akenhead drew a distinction between a contractual agreement to adjudicate and a statutory right of adjudication and held that, in the case of a contractual adjudication, the adjudication process is not undermined by the fact that the terms of the original contract were varied orally. In so concluding he distinguished the decision of the Court of Appeal in RJT Consulting Engineers Ltd v DM Engineering (Northern Ireland) Ltd [2002] BLR 217 (on which see our April 2002 issue, pp 4–7) on the basis that that case was concerned with a statutory adjudication where there is a requirement that all the terms of the contract must be in writing or evidenced in writing. Mr Justice Akenhead also held that the fact that the adjudicator had failed to sign his decision did not render his decision unenforceable. On the facts it was clear that the decision was the decision of the adjudicator and there was no term of the contract which required that he must sign the decision in order to render it enforceable.