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Dinmore Manor is located in the Herefordshire countryside. It has spectacular views across the Malvern Hills. And it has the builders in. The final account is knocking on the door of 拢15m. Martin Dawes is the owner. The work is all to do with Mr Dawes鈥� vision of creating a world-class stud facility for show-jumping horses. The builder, Treasure & Son, has already been paid 拢14m.

It was that well-known final fence, the final million or so, that caused horse and rider to stumble into a construction dispute. The experienced adjudicator Mr Paul Greenwood took it on. He decided Mr Dawes was to pay Treasure 拢1,018,821.00. But he didn鈥檛 pay.

Treasure went to the High Court to ask Mr Justice Akenhead for an enforcement order. The arguments there were twofold. The first was what鈥檚 known as the 鈥渙ral variation鈥� issue. The second was whether or not the absence of the adjudicator鈥檚 signature on his decision made it a nullity.

Let鈥檚 get that last one out of the way shall we? It made no odds. The adjudicator had plainly decided all the issues, had done so in time, and it was obviously his award, obviously published. No fences down.

The 鈥渙ral variation鈥� issue is much more interesting. I am grateful to Peter McCartney, of Contract Construction Consultants (Southern), for drawing my attention to the judgment.

Martin Dawes鈥� lawyers ran the respectable argument that, since the variations were oral and since the adjudicator鈥檚 award decided disputes about them, he had no legal authority, no jurisdiction to bind the parties. That argument failed. But suffice it to say, this confounded 鈥渃ontracts in writing鈥�. The so-called rule in section 107 of the Construction Act is an awful mess. Come on parliament: please hoof it out.

Let鈥檚 see why the argument failed.

This sort of thing happens all the time. The snag is sorting out the bill. But don鈥檛 quarrel about it, don鈥檛 fall out, call for the adjudicator. Easy really

Martin Dawes entered into a JCT98 contract with Treasure & Son. If parties have orally agreed JCT98 when getting into contract the adjudication procedure applies even if there is no exchange of JCT document, no signature.

But it鈥檚 not unusual for a party in a fresh adjudication to say the dispute is about an agreement or agreements within a contract that are not in writing and, therefore, this technical fence bars the right to adjudicate. All this comes from a Court of Appeal decision in 2002 called RJT vs DM Engineering. That case decided that there is no statutory right to adjudicate unless there is a contract between the parties relating to construction operations that is itself in writing. In RJT there was merely a letter confirming an agreement for services, but it didn鈥檛 confirm all the oral agreements. Hence there was no right to adjudicate.

But what about a contractual right? If you and I agree orally to an adjudication clause when getting into contract then bingo, we have a contractual agreement regardless of the Construction Act. Most of the adjudications I do are contractual.

So, Treasure carried out numerous oral instructions after practical completion was achieved, and this involved a whole pile of works over two years. That鈥檚 not so odd. But it might mean the original terms are varied. So, if the JCT contract containing the adjudication machinery is varied to take on board more work, the dispute machinery still applies. In short,

having agreed a contract with a contractual dispute system, it will apply to any changes made to that contract.

One other point. The judge was not satisfied that there was a variation at all. Seemingly, the builder and the architect and QS agreed, (with the employers agreement) 鈥渢hat the contract will continue to operate exactly as it had before鈥�.

So the parties鈥� rights after practical completion are derived from the same contract as before. There was no sign of a mutual intention that the original contract be varied. And you and I know that this sort of thing happens all the time. Builders and architects and surveyors just get on with things. The snag eventually is sorting out the bill. But don鈥檛 quarrel about it, don鈥檛 fall out, call for the adjudicator. Easy, really.