When is a party not a Party?

Specialist construction solicitors at Holmes & Hills examine the TCC’s decision in Darchem Engineering Ltd v Bouygues Travaux Publics & Anor [2026] EWHC 220 (TCC), a case that highlights the critical importance of identifying the correct ‘Party’ when commencing adjudication under joint venture contracts.

A recent case sheds light on when a (lower-case) party is not considered a defined Party for the purposes of commencing an adjudication.

Darchem Engineering Limited (Darchem) sought to enforce an adjudicator’s decision for a sum of monies owed to it pursuant to breach of a sub-contract between (1) an unincorporated joint venture between Bouygues Travaux Publics (Bouygues) and Laing O’Rourke Construction Limited (LOR) and (2) an unincorporated joint venture (JV) between Framatome Limited (formerly Efinor Limited) (Efinor) and Darchem for certain works to be carried out at Hinkley Point C.

In the adjudication, the adjudicator’s jurisdiction was challenged on the basis that Darchem was not entitled to bring such claims alone, since they were part of an unincorporated joint venture acting jointly and severally as the ‘sub-contractor’.

The legal question

The question before the TCC was now “Was Darchem, by itself, a “Party” to the subcontract with the right to commence adjudication?”.

The decision

The court held that no – Darchem was not entitled to bring an adjudication alone, and that the adjudicator had acted outside its jurisdiction. On this basis, the court refused to enforce the adjudicator’s decision.

Reasoning

1. The sub-contract had been drafted to be bilateral, with two parties
   The court considered the definition of ‘Parties’, which was defined as ‘the Contractor and the Sub-Contactor’, both singular. This was further bolstered by the use throughout the contract of ‘either’ and ‘both’, which is consistent with there being two parties rather than four or six. There were also specific situations within the contract that addressed a situation in which the companies could be individually considered rather than as a joint venture. For example, in the termination clauses, the clause specifically referenced ‘each such company individually’ in relation to liquidation of one of the joint venture members. As no such distinction was made in the dispute clauses, the court deemed reference to Party to mean that the joint venture was an indivisible, singular entity for the purposes of adjudication.
2. Darchem itself was not a separate party for procedural purposes
   The argument was made that both Darchem and Efinor had signed the sub-contract, with liability being joint and several. However, the court held that an unincorporated joint venture  does not have separate legal standing and therefore it was only natural and necessary that both entities forming the joint venture had to execute and enter into the sub-contract. The court held that the notion of joint and several within the sub-contract was one of liability for performance of the Sub-Contractor’s obligations - not one of the JV to exercise remedies unilaterally. Further, there was an unused mechanism for a ‘lead’ party that could then bind the other party in the JV if notification was given. In the absence of notification the Contractor had the option but not the obligation to accept that one of the entities could bind the JV.  Notification was not given in this case. There was also no unilateral entitlement for the Sub-Contractor to be treated as being able to bind the other party automatically. The court concluded that as there had been the option for a lead party which was unused, there was no free-standing procedural right for one party to adjudicate alone on behalf of the JV.
3. Use commercial sense
   The Court also stepped back to look at the possible practical implications. They considered there would be procedural chaos if each individual entity was considered a separate party in the specific context of adjudication. If each entity was able to bring separate claims alone, they could theoretically each commence a separate adjudication for the same issue with a different adjudicator. Within the Sub-Contract there was no procedural mechanism to deal with this situation of what could be four adjudications for the same issue. If it has been the parties’ intention to allow individual parties to bring claims alone, then it would be reasonably expected for there to be a procedural mechanism to deal with such scenario. As no such mechanism was in place, the court held that the intention must have been that the parties were not to act alone.

Practical Takeaways

1. If the parties that make up the JV are to have rights individually, make this clear in the drafting and provide robust mechanisms.
   If the commercial aim is that each of the JV members can refer disputes in its own name this could be made clear within the contract and should include safeguards to prevent possible duplicate adjudications.
2. Joint and several liability does not mean that each party can act alone.
   Joint and several wording usually allocates risk and liability and does not automatically confer unilateral rights to exercise contractual procedures such as adjudication on behalf of a JV (unless otherwise stated). Such intention should be made clear in any drafting.
3. Authority to act must be clear.
   If one entity is going to act on behalf of the JV, ensure there is:
   • Express contractual authority (clear wording that one entity may commence adjudication and bind the other members of the JV), and/or
   • A formal delegation/notification procedure under the contract.
     If such mechanisms are in place, it is important to utilise them as, as seen here, if they are not used, it can often be interpreted as the parties specifically choosing not to use those mechanisms. They cannot be forgotten about as their use or lack of) can be used in the interpretation of the parties’ intentions. 
4. Get the referring party right
   Starting an adjudication in the wrong name can be fatal. If the notice names the wrong party then the adjudicator may have no jurisdiction and the decision will be unenforceable regardless of how strong the underlying claim is. Make sure that, if you are part of a JV, you know who has the contractual right to bring a claim before you start the process.
5. Put proper agreements in place
   Don’t rely on goodwill. JV members should have an internal agreement, even a side letter, covering who can control dispute resolution steps. This can be incredibly important where communication breaks down, particularly where one member does not want to adjudicate and the other does.

Conclusion

This case is a reminder that adjudication strategy does not begin when a dispute arises. It begins when the contract is drafted and when parties decide how they will operate in practice under joint venture arrangements.

Understanding who the contractual “Party” is, and who has authority to act, can determine whether an adjudication succeeds or fails before it even starts.

If you are operating through a joint venture or considering adjudication under a JV contract, taking early advice on standing and authority can avoid costly jurisdictional challenges later.

Our construction team regularly advises contractors, subcontractors and consultants on dispute strategy, adjudication and enforcement across complex project structures. If you would like to discuss any of the issues raised in this article, please get in touch.