Summary

Serapid Limited referred a dispute to adjudication after Octavius Infrastructure Limited told it, in November 2025, that its lifts were no longer needed at Chalkwell station. The adjudicator found that the parties had made a subcontract on NEC3 terms in June 2025 and awarded Serapid £416,499. The adjudicator's fees were paid but the award was not. Octavius argued that there had never been a contract and so the adjudicator had no jurisdiction.

Moody J dismissed Serapid's application for summary judgment. Octavius had a real prospect of showing that the parties never agreed to be bound, and Serapid could not rely at the hearing on a new, unpleaded case that an oral contract had been made. The ruling is procedural: it does not decide that there was no contract, only that the point cannot be resolved summarily.

Background and facts

Octavius was main contractor to Network Rail Infrastructure Limited on an Access for All scheme at Chalkwell, Essex, replacing the footbridge with a new one carrying two lifts. The parties had signed a formal first stage design subcontract for the lifts in August 2024. In December 2024 Octavius invited tenders for supply and installation under a draft stage 2 subcontract on NEC3 terms, which was to be executed as a deed.

The fee was agreed at 18 per cent on 12 June. The drafting of clause X18, which capped Serapid's liability, was resolved on 16 June 2025. That day Octavius's senior project manager wrote that he believed all issues had been resolved and that the subcontract order would follow that week, while asking whether Serapid had started procurement although the order was unsigned.

Nothing was signed. In October Serapid re-priced the Chalkwell works at £1,065,000. On 7 November 2025, after Network Rail changed the lift type, Octavius wrote that it no longer required Serapid's services and had no contractual obligation to it.

The issue

Adjudicators' decisions are enforced even where they contain errors, but not where the adjudicator lacked jurisdiction. Octavius said there was no contract, so the statutory adjudication regime under the Housing Grants, Construction and Regeneration Act 1996 never applied. The question on summary judgment was whether that defence had a realistic, as opposed to fanciful, prospect of success.

Serapid's pleaded case was an NEC3 subcontract made on or about 6 June 2025. At the hearing it moved that date to 13 June, or 20 June, and argued in the alternative for a simple oral contract made in June 2025.

The decision

The judge applied the Supreme Court's test in RTS Flexible Systems [2010] UKSC 14: whether a contract exists depends on what passed between the parties, judged objectively, and whether that shows an intention to create legal relations on terms they or the law treated as essential. He found that Octavius had a real prospect of showing that no contract was made, first because Serapid could not fix when the bargain was struck.

In my judgment, the vagueness of Serapid's case gives some support to Octavius's position that there is at least a real prospect of showing that there was no contract at all.Mr Justice Moody, paragraph 36

Although most terms were agreed by late June 2025, the documents suggested neither side considered itself bound. The emails of 13 and 16 June suggested that a signed contract would be required. Serapid's August execution strategy suggested that scope, price, programme and execution remained to be resolved, and Serapid later sought to reopen the price. The tender required a deed. The judge compared the 16 June email with British Steel Corp v Cleveland Bridge, decided in 1984, where steel was made pending a formal subcontract.

I accept Octavius's submission that this is akin to the situation in British Steel: a request to proceed pending a formal contract.Mr Justice Moody, paragraph 38

Five months of manufacture did not prove a contract. Procurement began on 3 June, before Serapid's own pleaded date, and in May Serapid had proposed a purchase order with a cancellation clause rather than work on a letter of intent.

So the fact that procurement commenced does not necessarily indicate that contract terms had been agreed or substantially agreed.Mr Justice Moody, paragraph 39

Witness evidence about meetings in June and August could not be resolved on paper. The oral contract case failed because it was not pleaded, was not the dispute referred, had no clear offer, acceptance, price or scope, and depended on disputed witness evidence.

Second, the alternative case was not the dispute referred, and it is not the dispute the Adjudicator decided.Mr Justice Moody, paragraph 43

Serapid argued, relying on Pegram Shopfitters Ltd v Tally Weijl (UK) Ltd [2003] EWCA Civ 1750 and High Tech Construction Limited v WLP Trading and Marketing [2026] EWHC 152 (TCC), that a choice between two contracts would not affect jurisdiction. That point did not arise. Applying High Tech, where one party says there is no contract at all and has a real prospect of proving it, summary judgment is refused.

Practical implications

Subcontractors who manufacture on an agreed but unsigned subcontract carry the risk that there is no contract, and with it no statutory right to adjudicate. An adjudicator's view that a contract exists does not bind the court on enforcement. Where the documents show both sides expecting a signed document or a deed, the paying party may have a real prospect of defeating jurisdiction.

This is a first instance decision on a summary judgment application. It decides nothing about whether a contract was made.

Serapid Limited v Octavius Infrastructure Limited [2026] EWHC 2695 (TCC), High Court of Justice, King's Bench Division, Business and Property Courts of England and Wales, Technology and Construction Court, judgment of Mr Justice Moody handed down 22 October 2026 following a hearing on 22 September 2026, case number HT-2026-000209. Application for summary judgment to enforce an adjudicator's decision, dismissed.