Vitpol Building Service v Michael Samen [2008] EWHC 2283 (TCC)

The TCC does have jurisdiction to decide a dispute as to the existence and/or terms of a contract.  To read the judgment, click here.  

Vitpol v Samen: Paragraph 9.4.1 of the TCC guide, which notes that the TCC will hear any applications for declaratory relief ‘arising out of the commencement of a disputed adjudication’ does not confine the court’s jurisdiction to applications made in relation to adjudications that have already been commenced: ‘I reject the suggestion that the court’s jurisdiction can be defined by reference to the TCC guide, construing that document as if it were a statute or a contractual exclusion clause. That is not the nature and purpose of the guide, which is designed only to set out in simple terms how the TCC can answer or assist the parties to resolve their disputes….The TCC guide is emphatically not designed to define the TCC’s jurisdiction in every case. Its provisions do not shut out a bona fide dispute between the parties as to the existence of a contract, which might give the claiming party the right to adjudicate…It makes no difference to the court’s jurisdiction whether the disputed adjudication has been started or not.’

In March 2006, the defendant invited tenders for building works to convert a hotel back into a family house. The claimant’s tender was successful and he commenced work on or around 6 July 2006. There was no contract then in place. As the works progressed, negotiations between the parties occurred as to price, scope of work and contract terms. The parties fell out and, in March 2007, the defendant instructed the claimant to vacate the site the following day. The parties then engaged in a pre-action protocol process. Before the end of the protocol process, and without any notice, the claimant began proceedings under Part 8, seeking declarations concerning the existence of the contract and the contract terms. The claimant wished to adjudicate the substance of its disputes and needed a finding that clause 9.2 of the IFC standard form had been incorporated into the contract. If clause 9.2 was not incorporated, then the claimant would not have the right to adjudicate because the building works related to work for a residential occupier. Return to Summary.