WhatsApp Doc? The pitfalls of adjudicating on an uncertain contractual basis – High Tech Construction Limited v WLP Trading and Marketing Limited 9 February 2026

The parties’ arrangement for the works was poorly documented, leading to two entirely incompatible accounts of whether a contract had ever been formed. HTC said an “Enabling Works Contract” arose through informal discussions and messages. WLP contested that these communications showed the opposite, relying on contemporaneous records that indicated no contract was in place. Even the WhatsApp exchanges could be interpreted to support either narrative.

The court ultimately did not need to determine whether a JCT contract existed, but highlighted the “competing mutually exclusive narratives” and noted that each side had a real prospect of proving its version. The case underscores the risks of relying on ad‑hoc, informal exchanges when attempting to create legally binding construction contracts.

The High Court’s consideration of contract formation and the adjudicator’s jurisdiction

The court noted, that the leading authority on this point is Pegram Shopfitters v Tally Weijl (UK) Ltd, which provides clear guidance on how courts should deal with adjudication enforcement where the existence of the underlying contract is credibly disputed. The Court of Appeal in Pegram held that an adjudicator only has jurisdiction if the contractual basis upon which they were appointed is securely established. Where two competing contractual narratives exist, with one conferring jurisdiction and one not as was the case in Pegram, summary enforcement is inappropriate because the adjudicator cannot conclusively determine their own jurisdiction.

Based on the facts provided by the parties, the court also considered the principles in Air Design v Deerglen. In Air Design, the adjudicator had jurisdiction because both parties accepted that a single originating contract existed, allowing questions about subsequent agreements to be treated as substantive matters. By contrast, in the current case there was no agreement on an original contract. WLP said the alleged JCT contract never existed, while HTC said it did. Without a “proper appointment,” the adjudicator cannot rely on Air Design to validate jurisdiction, because that principle operates only once the foundational contract is undisputed. As the court emphasised, these authorities reinforce that substantive questions about scope may overlap with jurisdiction, but only where the adjudicator’s jurisdiction is grounded in an accepted contract, which was absent here.

Having examined the authorities, the court made out the following guiding principles:

1. A dispute about whether a contract actually existed can affect both jurisdiction and a substantive payment dispute between parties.
2. Where the parties disagree about whether any contract with an adjudication clause exists, the issue is jurisdictional. If the defending party’s case has a real prospect of success, summary judgment should be refused.
3. Where the parties agree there is a foundational contract, but dispute whether later work was carried out under that contract or under additional instructions or variations, this is a substantive issue, and the adjudicator has jurisdiction.
4. Even if the claimant misdescribes the foundational contract, or the parties disagree on its precise terms, the adjudicator still has jurisdiction so long as both sides accept that a foundational contract exists.
5. Parties resisting enforcement may try to characterise the issue as one of contract “existence”, while those seeking enforcement may frame it as mere “misdescription”. The court must scrutinise the facts carefully but ensure that a valid construction contract exist before an adjudicator’s jurisdiction can arise.

Upon considering the parties’ submissions, the court ruled that this was an “existential” jurisdiction case. If WLP were correct in that the January JCT Contract never existed, then the adjudicator had no jurisdiction at all, and his conclusion on the payment sum cannot bind the parties, even temporarily. WLP was considered to have a real prospect of success in showing this to be the case at trial, meaning enforcement must be refused.

The effect of fraud

WLP’s second challenge was that the adjudicator’s decision should be set aside for fraud. The court referred to several authorities on the point, including the seminal case of PBS Energos A.S. v Bester Generacion UK Ltd. Please view our article to further understand the full ramifications of this leading decision. In this case, it was held that evidence of fraud can indeed defeat enforcement, but only where there is clear and unambiguous evidence. Crucially, the court accepted that fraud discovered only after the adjudicator’s decision can justify refusing summary judgment, a point central to the reasoning in the current case. This reaffirms the decision in Speymill v Baskind.

The court found that as this case was one of jurisdictional issue which had already been determined on other grounds, and as such the fraud analysis did not affect the outcome in this instance. Accordingly, the court held that the fraud challenge did not assist WLP.