If parties agree to give the adjudicator the
power to decide questions of jurisdiction, they will be bound by
such election. In some circumstances, a director of a company may
be personally liable where the company is not identified as the
HHJ Wilcox QC, Technology & Construction
22 February 2000
C was the managing director of a company known as
Hazel Green Village Management Ltd. The company was based at a
holiday village known as Hazel Green Village, and there were
another 10 companies at the resort with similar names.
C entered into a contract with N to demolish some
units and carry out new build work. The contract was the Small
Works Form published by the Architects and Surveyors' Institute.
The employer was described in the Appendix as "Hazel Green." In
fact, there was no company of that name.
A dispute arose, and N consulted Pye Consulting,
when it was discovered that Hazel Green did not exist. Pye obtained
counsel's opinion. Counsel advised that under the Companies Act
1985, since no company of the name of Hazel Green existed, the
contract could have been entered into by C in person:
"Where a contract purports to be made by a
company ... at a time when the company has not been formed ... then
... the contract has the effect as one entered into by the person
purporting to act for the company ... and he is personally
C said that everyone knew that the contract was
entered into by one of the companies and not by him. An adjudicator
was appointed, and the parties decided to give him the power to
decide the jurisdictional dispute of the identity of the employer.
The adjudicator was not able to identify one of the eleven
similarly named companies as employer, and therefore found that C
was liable. The adjudication proceeded and N was awarded sums
payable by C, plus its costs.
During the enforcement proceedings, C argued that
there was no jurisdiction for the adjudicator because there was no
contract at all. The court disagreed. The parties had agreed to be
bound by the adjudicator's decision as to jurisdiction. There was
no arguable case that the parties were in error as to with whom
they were contracting.
C also challenged the adjudicator's jurisdiction to
award costs. The court found that there was jurisdiction as each
side had asked the adjudicator to award it costs. C was also
refused his application for further time to pay.
If parties agree to give the adjudicator the power
to decide questions of jurisdiction, they will be bound by such
election. In some circumstances, a director of a company may be
personally liable where the company is not identified as the