His Honour Judge Bowsher QC held that the oral agreement did not comply with section 107 of the act, and further that there was no dispute capable of being referred to adjudication. He therefore refused to enforce the decision. In respect of the oral agreement, he considered that the agreement had not been evidenced in writing pursuant to section 107(2)(c) and had not been recorded otherwise than in writing pursuant to section 107(3) of the act. He referred to the Court of Appeal case of RJT Consulting v D M Engineering  5 BLR 217, which supported his conclusion. In respect of the "no dispute" point he considered by analogy that the arbitration cases raise the issue of whether or not a dispute entitles a claimant to start arbitration proceedings. In particular he referred to Judge Gilliland QC in Cruden Construction Limited v Commissioners for the Newtown  2 Lloyds Rep 387 in which he noted that the plaintiff had requested further information but that information was not supplied until after the service of a notice of arbitation. He therefore took the view that there was no dispute at the time of the service of the notice of arbitration. His Honour Judge Bowsher QC made the point that one should not examine the minute details of the correspondence leading up to the notice of adjudication, but should take a broad approach. On this basis, he still considered that DML was not aware in what respects it was alleged to have broken its obligations on the date on which n of adjudication had been served. His Honour Judge Bowsher QC therefore held that there was no dispute, and as a result the adjudicator did not have jurisdiction.
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Permission to appeal was given His Honour Judge Bowsher QC. His decision raises issues of some public importance, given that many construction disputes involve oral agreements, or part oral agreements which maybe material to the issues in dispute. Following the Court of Appeal case of RJT and this case, it appears that an adjudicator will not have jurisdiction if any of the material terms have not been recorded in writing.