2nd March 2026
Judgment handed down in Darchem Engineering Ltd v Bouygues Travaux Publics & Laing O’Rourke Delivery Ltd [2026] EWHC 220 (TCC), in which Jessica Stephens KC and Mek Mesfin, instructed by Kate Lister, Barnaby Sandy and Rebecca Wilding of Clyde & Co, resisted the enforcement of an adjudicator’s decision for £23.9m, in what appears to be the first case on whether a single member of an unincorporated joint venture may commence adjudication in its own right.
1. Darchem Engineering Ltd (“Darchem”) sought to enforce by way of summary judgment an adjudicator’s decision in the sum of £23,944,012. The underlying dispute arose out of subcontract works at Hinkley Point C. The subcontract was entered into between two unincorporated joint ventures:
a. the main contractor JV (Bouygues Travaux Publics (“Bouygues”) and Laing O’Rourke Delivery Limited, formerly Laing O’Rourke Construction Limited (“LOR”)), known as BYLOR; and
b. the subcontractor JV (Darchem and Framatome Limited (“Framatome”) (formerly Efinor Limited (“Efinor”))), known as EDEL.
2. Darchem commenced the relevant adjudication, asserting that it was entitled to do so as a “Party” to the subcontract; alternatively, acting jointly and severally as the Subcontractor. This was the third adjudication commenced (and concluded) by Darchem alone.
3. In each adjudication, BYLOR challenged the adjudicator’s jurisdiction on the basis that Darchem, as one constituent of the subcontractor JV, EDEL, was not itself a Party to the subcontract and therefore had no standing to refer disputes to adjudication. That challenge was rejected by the adjudicator, and the issue came before the Court on the enforcement of the third decision.
4. The Court reaffirmed the TCC’s well-established robust approach to adjudication enforcement, but emphasised that the central issue was one of contractual construction, which fell to be determined by applying orthodox principles and not by reference to the enforcement context.
5. The two critical issues were:
a. whether Darchem was a “Party” for the purposes of the adjudication provision in Option W (clause 2.2), such that it could commence adjudication proceedings in its own name; and
b. if Darchem was not a “Party” for the purposes of the adjudication, whether it could commence adjudication proceedings in the name of the Subcontractor.
6. The Court rejected Darchem’s submissions on both issues.
Was Darchem a “Party” to the subcontract?
7. Mr Justice Constable held that, properly construed, the subcontract was bilateral: the “Parties”, as defined in the subcontract, were the Contractor (the BYLOR JV) and the Subcontractor (the EDEL JV), not the individual constituent companies. The conditions of subcontract defined the term “Parties” as the Contractor and the Subcontractor. The subcontract also contained numerous provisions drafted on the basis of a bilateral subcontract: the Judge highlighted that the subcontract used language such as “either Party”, “both Parties” and “the other Party” throughout. Moreover, clauses 91.1 and 91.2 were telling because they contained specific deeming provisions for the termination regime whereby, in that limited context, references to a “Party” were deemed to include each constituent entity of a JV. The Court drew the “obvious inference” that, absent such deeming language, “Party” was not intended generally to refer to the individual venturers; and no equivalent deeming provision existed in Option W.
8. Darchem relied heavily on the words “All of the above are together known as the ‘Parties’” contained in the Agreement (which formed part of the subcontract). But the Court held that in light of the other provisions of the subcontract (summarised in the paragraph above) the phrase “All of the above are together known as the ‘Parties’” did not bear the meaning for which Darchem contended. Properly construed, it was linguistically and conceptually coherent to read that wording as describing the constituent companies which together made up the two parties (Contractor and Subcontractor), rather than creating four separate contracting parties (let alone six Parties, as Darchem sought to argue).
9. The Court also held that the fact each joint venturer executed the deed was neutral: an unincorporated JV has no separate legal personality and therefore does not have legal standing to execute a deed itself, so execution by the venturers was natural and necessary absent authority, and did not of itself make the executing entities a “Party” as defined.
Was Darchem able to commence adjudication in the name of the Subcontractor?
10. Having concluded that Darchem was not itself a “Party” to the subcontract, the Court then considered and rejected Darchem’s further contention that the words “acting jointly and severally” in the introductory words of the Agreement meant that it had authority to act, and had acted, on behalf of the Subcontractor.
11. The Court concluded that whilst the joint venturers had acted joint and several liability under the subcontract, the subcontract did not confer a unilateral entitlement on a single JV member to act severally in relation to all contractual rights. Clause 12.6 of the subcontract specifically addressed the question of the circumstances in which the Subcontractor comprised two or more companies acting in joint venture (as was the case here). It contemplated notification of a leader with authority to bind the JV, and in default permitted the Contractor to rely on any constituent joint venturer as having authority. However, the Court held that clause 12.6 did not oblige the Contractor (in the absence of notification of a leader) to accept any purported authority by a constituent joint venturer, and clause 12.6 did not (in the absence of notification of a leader or acceptance by BYLOR) operate so as to permit Darchem to commence adjudication. (In this case, by raising its jurisdictional challenges, BYLOR had expressly rejected Darchem’s purported authority to commence adjudication in the name of the Subcontractor.) The Court held that Darchem’s construction would render clause 12.6 otiose.
12. The Court also considered some of the practical implications of Darchem’s construction. Accepting BYLOR’s submission, Constable J highlighted the “chaos” that would arise if each joint venturer were a “Party” for the purposes of Option W, because this would mean that (for example) a dispute could arise in relation to a particular payment certificate, and each of Bouygues and LOR could separately commence an adjudication against each of Darchem and Framatome, nominating a different adjudicator for each in relation to an identical issue (i.e. up to four adjudications concurrently on the same point).
Conclusion and implications
13. In conclusion, the Court held that Darchem was not a “Party” to the subcontract and therefore could not invoke Option W in its own right; alternatively, the subcontract did not give Darchem unilateral authority to commence adjudication on behalf of the Subcontractor.
14. It followed that the adjudicator lacked jurisdiction, his decision was a nullity, and the application for summary judgment to enforce the decision was dismissed.
15. Darchem sought permission to appeal from Constable J, which he refused.
16. There are at least two important implications.
a. First, this decision is a salutary reminder that, notwithstanding the TCC’s pro-enforcement approach to adjudicators’ decisions, the Court will scrutinise jurisdictional challenges carefully and determine each case on its own merits.
b. Second, the focus on the contractual terms in this case underlines the importance for clients of reviewing with care the precise terms of their contracts, including (but not limited to) provisions defining the “Parties”, allocating rights of enforcement (such as the right to commence adjudication), and addressing whether (and if so, in what circumstances) one joint venturer may bind or act on behalf of the joint venture or its co-venturers.
Read the full judgment here.
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