Adjudication Risks When Contract Existence is Disputed

The decision of the Technology and Construction Court In High Tech Construction Limited v WLP Trading and Marketing Limited [2026] EWHC 152 (TCC) has highlighted the need for contractual certainty and its corresponding relationship with Adjudicator jurisdiction. Where the existence of the underlying contract is in dispute, rather than the nature of its terms, and the defending party has a real prospect of successfully proving it does not exist then an adjudicator will not have the jurisdiction to decide a dispute arising and any claim for enforcement of an award made regardless will fail, as in this case.

Background

WLP Trading and Marketing Ltd (“WLP”) engaged High Tech Construction Limited (“HTC”) to undertake groundworks on a residential development owned by WLP. While an initial payment was made, a sum of £2.1 million under the contract remained outstanding following the completion of the works by HTC, despite repeated promises that payment would be made. HTC sought and obtained a without‑notice Freezing Order against WLP in November 2025 amid concerns about the potential for dissipation of assets by WLP, and initiated adjudication proceedings to reclaim the outstanding balance.

HTC asserted that the parties signed a 2016 JCT Design and Build Contract, under which they were both entitled to refer disputes to adjudication. The dispute HTC referred sought payment of £2,142,623.35 plus interest based on their completed works.

WLP disputed the existence of a valid JCT contract between the parties, arguing that the document presented by HTC had been “fabricated, altered or misrepresented in a manner which amounts to fraud” [9]. On this basis, WLP believed that the adjudicator lacked jurisdiction to decide the dispute referred. WLP argued instead that the parties operated under an Enabling Works Contract governed through oral discussions and WhatsApp conversations for the demolition and initial works and later a RC Frame contract for works totalling £1.25 million.

The adjudicator acknowledged that fabrication or fraud of the JCT contract would deprive him of jurisdiction, however as no clear, cogent, and compelling evidence was submitted to prove these allegations, he determined that he had jurisdiction under the contract relied on by HTC. In turn, as that contract was determined to be valid, the adjudicator decided that the full amount as claimed was due to HTC. HTC sought to enforce this decision via summary judgement.

Decision

The judgment handed down by the Technology and Construction Court (the “Court”) on 13 January 2026 was in respect of the enforcement proceedings initiated by HTC following the adjudicator’s decision.

In defence to the enforcement, WLP presented further and more detailed evidence to support its position that there was no agreed contract ion the JCT terms or for the scope of works that HTC contended. WLP asserted that through the aforementioned oral/WhatsApp correspondence the scope of works was significantly less than that asserted and valued by HTC, giving rise to a lower contract sum. HTC sought to argue that the scope of works was immaterial so as to not undermine the adjudicator’s jurisdiction and maintained that the adjudicator had jurisdiction.

The Court stated that in a scenario where the issue lies in the scope of works rather than the existence the contract under which that scope relates, an adjudicator would have jurisdiction, referencing Air Design (Kent) Limited v Deerglen (Jersey) Limited [2008] EWHC 3047 (TCC). However, where there is a fundamental dispute as to the existence of the contract and there is a real prospect of success in proving that the contract that was the basis of the adjudication referred does not exist, it would be inappropriate to enforce a decision under that disputed contract.

The Court found that the case was not a minor disagreement about contract terms, but a fundamental or ‘existential’ challenge to the very existence of the contractual foundation on which the adjudicator’s jurisdiction depended [71]. In light of the new evidence from WLP, the narratives as to the correspondence between the parties was contradictory and could not both be true. The Court found that it could not enforce an adjudicator’s decision that ignored the now strong possibility that the contract was not only different but potentially did not exist, as “the Adjudicator had not sufficiently secured the identification of the contractual terms necessary to the proper performance of his adjudication task” [72].

The Court also confirmed that the adjudicator had no authority to bind the parties on whether the underlying contract existed. While an adjudicator may investigate a jurisdictional challenge, an adjudicator “did not have jurisdiction to temporarily bind the parties to his conclusion in this foundational question.” [71–72]. This is because the adjudicator’s authority depends on the contract’s existence; an adjudicator cannot conclusively decide the very question that confers jurisdiction.

The issue of fraudulent misrepresentation did not need to be determined by the Court as enforcement had already failed on the ground of jurisdiction. It was noted that the Court was still bound by Speymill and PBS Energos, which require high evidential thresholds for fraud in enforcement proceedings. [77–83].

Key takeaways

There will be clear cases where contract formation disputes may undermine adjudicator jurisdiction and enforcement.

As demonstrated here, where the existence and validity of the underlying contract is in dispute, any issued decision is unlikely to be enforced if the challenge to the existence of the contract has a real prospect of success. Put simply, the existence of the underlying contract is a threshold to validly adjudicating. This is not the case where the terms and conditions of the contract, rather than its existence, are at issue.

In the context of an adjudication, clear evidence would need to be presented by the defending party as to why the contract is said not to exist. That may be difficult to do in the time available, but at the very least the point should be made. If that evidence does not meet the threshold of having a real prospect of success, including as a result of the time constraints in adjudication, then the adjudicator may well continue, but in such a circumstance the claiming party will be alive to potential enforcement challenges if successful.

Courts will scrutinise contemporaneous evidence (e.g. emails, meeting minutes, WhatsApp messages, oral agreements) where a party alleges the formal contract was fabricated or the terms/scope of what had been agreed between the parties differed. Parties should therefore take steps to create and retain signed contract documentation, as any challenge to the true basis of contractual relations can cause future disputes and uncertainty. It can also unravel adjudication, enforcement, and impact or taint ancillary orders (like freezing injunctions).

Beale & Co has experience in advising on and negotiating construction contracts for a range of project types, as well as in adjudication and jurisdictional challenges, including relating to contractual interpretation. Should you require legal advice or support in view of the issues raised by the decision, please contact James Vernon.