TCC Refuses to Enforce Adjudicator’s Decision Where Existence of Contract is in Dispute: Serapid Limited v Octavius Infrastructure Limited

Octavius Infrastructure Limited (“Octavius”) was engaged by Network Rail Infrastructure (“NRIL”) to deliver an Access for All scheme at Chalkwell, involving the replacement of a footbridge and the installation of two lifts. Octavius invited Serapid Limited (“Serapid”) to tender for the supply of the lifts, and the parties entered into negotiations throughout 2025, which included the proposed use of amended NEC3 terms.

Although agreement was reached on many of the proposed commercial and contractual terms, no formal contract was ever executed.

In November 2025, following changes to the lift requirements, Octavius informed Serapid that its services were no longer required. By that stage, Serapid had already commenced manufacturing despite negotiations remaining ongoing. Serapid referred the dispute to adjudication alleging wrongful termination and seeking £667,526.

Adjudication

Serapid submitted that a binding contract had been formed between the parties which included safeguards against termination by the method used by Octavius. Octavius challenged the adjudicator’s jurisdiction, arguing that no contract existed and, accordingly, that there was no construction contract capable of giving rise to a statutory right to adjudicate or in fact an express contractual right.  

The adjudicator rejected that challenge. He found that the parties had reached substantive agreement on the applicable terms and conditions, the contract price and the anticipated programme. Although minor matters remained outstanding, the adjudicator argued that these were not sufficiently significant to prevent a binding agreement from arising.

Having determined that a contract existed, the adjudicator found that Octavius had wrongfully terminated it and awarded Serapid £416,499 in damages, together with the adjudicator’s fees of £29,250.

The adjudicator’s fees had been paid but the award remained outstanding.

Summary Judgment

Following the adjudicator’s decision, Serapid applied for summary judgment to enforce the award. Serapid argued that Octavius had no real prospect of successfully establishing that the parties did not contract on NEC3 terms or, alternatively, that they did not enter into a simple contract.

Octavius opposed the application, arguing that no binding contract had been formed and that the adjudicator therefore lacked jurisdiction to determine the dispute.

Did Octavius have a real prospect of showing that no contract existed?

The central issue before the Court was whether Octavius had a real prospect of establishing at trial that no binding contract had been formed between the parties. If Octavius could not demonstrate a realistic defence on contract formation, summary judgment would ordinarily have been granted to enforce the decision.

In assessing that issue, the Court considered the parties’ negotiations, the extent to which the contractual terms had been agreed, and whether the parties objectively intended to create legal relations. Although many of the commercial terms had been substantially agreed by June 2025, the Court concluded that Octavius had a real prospect of establishing that no contract had been formed. In particular, the Court noted that:

• Serapid’s case was inconsistent as to when the contract was allegedly concluded, with different dates advanced during the proceedings and an alternative argument that a separate oral contract existed.
• There was significant contemporaneous evidence suggesting that neither party regarded itself as legally bound in June 2025.
• Communications between the parties indicated that execution of a formal written contract remained a prerequisite to a binding agreement.
• Negotiations continued for some time after June 2025.

The Court determined that Octavius had a real prospect of establishing that no contract had been formed. After reaching this conclusion, the Court then relied upon the principles in High Tech Construction Limited v WLP Trading and Marketing [2026] EWHC 152 (TCC), which held that where the adjudicator’s jurisdiction depends on a contract existing, and the responding party has a realistic (rather than fanciful) prospect of establishing that no contract was ever formed, the court should not grant summary judgment enforcing the adjudicator’s decision.

Commentary

This decision serves as a reminder of the limits of the adjudication enforcement regime where the existence of the underlying contract is itself in dispute. While the courts generally adopt a robust and pro-enforcement approach to adjudicators’ decisions, that policy is not likely to extend to cases where there is a realistic prospect that the adjudicator lacked jurisdiction from the outset, including where there was a credible argument that no underlying concluded construction contract.

This case also highlights the importance of clearly documenting contractual intentions during negotiations. Parties that continue to negotiate key terms, reserve matters for a future written agreement, or act inconsistently as to when a contract was formed may find it difficult to establish the certainty required for a binding contract. For contractors and suppliers operating under tight project programmes, the decision is a cautionary reminder that commencing work before contractual formalities have been completed can create substantial legal and commercial risk.

If you have any questions regarding the information discussed in this article, please contact James Vernon and Molly Vautier.