Under the contract, Mitch was engaged in commercial property development and intended to purchase a site in order to construct a care home which would be operated by its operational arm. Mitch identified a suitable site. H&B were engaged in the business of land acquisition planning and development and were able to achieve a significant saving for Mitch on the purchase price. A dispute arose over the incentive fee that was payable to H&B.

One of the heads of claim was adjudication costs. For a contract to be covered by the adjudication provisions of the Housing Grants Act, it must be an agreement to carry out construction operations or to arrange for the carrying out of construction operations. Here HHJ Moulder had to consider whether an oral contract fell within this test. She decided that it clearly did not as it involved negotiation of a price for land and negotiations subject to contract. It did not involve anything to do with building or works on the land.

This meant the adjudicator who had earlier decided the parties’ dispute lacked jurisdiction and H&B could not recover those costs as part of the court proceedings.