In Workplace Technologies plc v E Squared Limited (2000)TCC the issue was when the contract was made for the communication works at Bluewater Shopping Centre in Kent.  Workplace made clear throughout that it disputed the jurisdiction of the adjudicator and sought a declaration that the contract between the parties was entered into before Section 108 of the Housing Grants, Construction and Regeneration Act 1996 came into force.  Workplace also sought a declaration that the adjudicator appointed had no jurisdiction and an order restraining E Squared continuing the reference to adjudication.

The application first came before His Honour Judge David Wilcox on 3rd February 2000.  Directions were given for limited disclosure as to the formation of the contract and the exchange of witness statements and the hearing adjourned to 9th February 2000.

Judge Wilcox examined the background facts of the case and found that as is usual in construction, negotiations continued over a considerable period.  By 15th May 1998 it was apparent that the Bluewater Construction Management Team and Workplace Technologies had reached substantial agreement on most of the relevant matters to be included in the formal agreement.  E Squared was intended to be subcontractor to Workplace for the works.  

Between Workplace and E Squared the scope of work was agreed broadly by 9th October 1997 and by late December some work had commenced.  On 16th December 1997 E Squared wrote to Workplace enclosing a "Gold Form" which it proposed to use and requesting that the form be completed.  It was not returned.  On 26th January 1998 Workplace issued a purchase order to E Squared.  It was held that that the parties had not by January 1998 concluded a contract.

By 23rd February 1998 both parties addressed Bluewater's further requirements for a wider scope of work to include 2,000 extra contact points.  Communications continued with reference to the Gold Form by E Squared.

It was held that the form of agreement could be divorced from its content, as when parties conclude an agreement, then seek to evidence that agreement formally by incorporating it into a formal agreement.  That was not the situation in the instant case.  The Gold Form was not merely a convenient vehicle for recording of an already concluded agreement.  It was significant that there was no suggestion that any other amendment to the form, other than filling in of the blanks, seems to have been contemplated.  It was not until a meeting on 20th May 1998 confirmed by letter dated 5th June 1998 that Workplace agreed to fill in the blanks.  It was held that it was not until at the earliest 20th May 1998,but certainly by 5th June 1998, that the contract between the parties was ultimately concluded.

Accordingly Judge Wilcox held that Workplace was not entitled to the declaration sought.

As to the application for injunction, this was not pursued due to the early hearing date giving by the Court to determine the declaration issues finally.  Nonetheless Judge Wilcox stated that there was no power to grant an injunction to restrain a party initiating a void reference and pursuing proceedings which are themselves void and which may give rise to a void and thus unenforceable adjudication decision.  There was no legal or equitable interest to protect although such proceedings may be conceived as a source of harassment, pressure or needless expense.

If the Court grants an injunction without determining the issue of the date of the contract, then it may be interfering in a valid adjudication to its detriment.  The balance of convenience favours allowing an adjudication process to continue.