These restrictions are pointless.

The first case was Bennett (Electrical) Services v Inviron.

A dispute over electrical installation works had been referred to an adjudicator who found in favour of Bennett.

When Inviron failed to pay, Bennett sought enforcement in the Technology and Construction Court before Judge David Wilcox.

The issue was whether there was a contract based on a letter of intent and, if so, whether the contract was in writing for the purposes of section 107 of the Construction Act.

In the letter of intent Inviron stated its intention to enter into a contract and set out the basis of that contract. The letter instructed Bennett to proceed with all works to progress the proposed contract.

The letter also included the usual term that if the subcontract was not concluded, Inviron would reimburse Bennett s reasonable direct costs.

Significantly, the letter expressly excluded any contractual remedies and was headed subject to contract. Nevertheless, Judge Wilcox held this did not necessarily mean the letter of intent lacked legal effect; this would depend upon an interpretation of the letter.

In this case the whole content of the letter of intent was expressed to be subject to contract. Any contract was subject to the approval of a third party and, if a contract was not concluded, contractual remedies were excluded.

Judge Wilcox noted the parties had agreed payment terms for work carried out according to Inviron's instructions - a form of restitution rather than a contract-based payment. No contract had come into being.

Judge Wilcox proceeded to consider the technical requirement for the contract to be in writing. He referred to the 2002 case of RJT Consultant Engineers v DM Engineering, in which a majority of Court of Appeal judges held it was not simply terms material to the issues but all terms that had to be recorded in writing.

This means a contract is not in writing for the purposes of section 107 if the written terms omit to cover key obligations, or where additional contractual terms have been agreed orally or the works have been subject to significant oral variation.

In this case a great deal of extra work was instructed by Inviron and the letter of intent was subject to significant oral variations. There was no provision for prices and rates nor any method of assessing and timing payment of costs.

In addition, the letter of intent referred to a meeting where a number of issues were discussed, including working hours, mechanisms of payment, variations, insurance and health and safety. These were key matters and not the subject of a recorded agreement.

Judge Wilcox therefore decided that the agreement did not comply with section 107.

Accordingly the adjudicator had no jurisdiction and his decision was not enforced.

The second case is Epping Electrical Company v Briggs & Forrester (Plumbing Services).

Judge Richard Havery QC considered the period for the adjudicator to make his decision. The dispute related to variations, whether the contract sum was fixed or fluctuating price, the length of the defects liability period and the agreed daywork rates for labour. The adjudicator found in favour of Epping, which then sought enforcement of the decision.

The Construction Act requires the adjudicator to make his decision within 28 days, but this can be extended by up to 14 days by permission of the referring party. Epping as the referring party had agreed an extra six days. The adjudicator requested a further seven days (to November 21, 2006), to which Epping consented on the understanding the decision would be issued on that date.

The adjudicator reached his decision on November 21 but withheld it pending payment of his fee. He soon relented, issuing his decision two days later.

Briggs claimed the decision was out of time. It cited the 2005 Scottish case of Ritchie Brothers (PWC) v David Philp (Commercials), in which it was held that the period for the adjudicator to reach his decision was mandatory.

Judge Havery said it would be wrong to interpret the Construction Act differently in the Scottish and English jurisdictions. Although not bound by the decision in Ritchie he considered he ought to follow it.

Hence he decided there was a distinction between making a decision and issuing it. Nobody denied the decision was reached on November 21. But issuing it two days later was fatal to its validity: the decision was made out of time.

But the contract also prescribed its own adjudication procedure, including that if the adjudicator failed to reach his decision in time it would still be effective if it were issued before the dispute could be referred to any replacement adjudicator.

Judge Havery said this contractual provision could not be allowed to affect the construction of section 108(2), which provides for a mandatory time limit. This meant the contract was not compliant so the Scheme for Construction Contracts automatically applied, complete with mandatory time limits. The decision was out of time and not enforceable.