Members of joint ventures cannot unilaterally bring adjudication proceedings on behalf of their joint venture

In Darchem Engineering Ltd v Bouygues Travaux Publics and another [2026] EWHC 220, the Technology and Construction Court (TCC) considered a fundamental question for parties engaged in joint venture (JV) construction projects: can one member of an unincorporated JV bring adjudication proceedings in its own name, or must such proceedings be commenced by the JV?

In this case, Darchem Engineering Ltd (Darchem), as a member of the JV, was found not to be a "Party" under the contract and, accordingly, could not commence enforcement proceedings unilaterally and in its own name. This judgment is not particularly surprising and follows a long line of case law on partnerships and limited companies which are applicable by analogy.

Background

Darchem and Framatome Limited (Framatome) formed an unincorporated JV (together EDEL) while the main contractor was another unincorporated JV formed of Bouygues Travaux Publics (Bouygues) and Laing O’Rourke Delivery Limited (LOR) (together BYLOR). BYLOR and EDEL entered into an agreement for the procurement, off-site manufacture, pre-fabrication, testing, delivery, and installation of stainless-steel pools and tanks for the Hinkley Point C nuclear power station (the Subcontract).

What were the terms of the Subcontract?

Clause 12.6 of the Subcontract imposed joint and several liability on the members of EDEL for performance of the Subcontract works. The Subcontract also included a mechanism whereby either member of EDEL could notify BYLOR of one member being EDEL’s “leader”. If such notice was given, that member would have the authority to bind EDEL as a whole. In the absence of such notification, the Subcontract provided that BYLOR had discretion to rely upon either member as having authority to bind EDEL.

What were Darchem’s Adjudications?

Darchem sought to enforce an adjudication award of just over £23.9m for unpaid sums and delay by way of summary judgement. This adjudication was the third of a series which were brought by Darchem alone, claiming to be “acting jointly and severally” and on behalf of EDEL pursuant to clause 12.6 of the Subcontract. BYLOR challenged the adjudicator's jurisdiction in each adjudication, arguing that Darchem was not a "Party" to the Subcontract and, therefore, was not entitled to refer disputes to adjudication – a challenge ultimately rejected by the adjudicator. This issue of who was able to bring a matter to adjudication was therefore central to the TCC enforcement proceedings as, under the Subcontract, any “Party” could refer a dispute to adjudication.

What arguments did each side make in the TCC enforcement proceedings?

• Darchem’s Argument
  Darchem argued that it fell within the definition of a "Party" as:
  • Darchem was named as one of the four separate companies identified as the "Parties" to the Subcontract, which indicated the intention for each constituent company making up the JVs to be considered a “Party”; and
  • The Subcontract specified that Framatome, acting jointly and severally with Darchem, was defined as the "Subcontractor" which granted Darchem the unilateral and automatic entitlement to act severally.
• BYLOR’s Argument
  BYLOR, on the other hand, argued that Darchem was not a “Party” as:
  • Clause 11.2(11) of the Subcontract explicitly defined "Parties" as "the Contractor and the Subcontractor";
  • The drafting of the Subcontract indicated intent to create a bilateral – rather than multilateral – agreement.
  • Only the “Subcontractor” (comprising of both members of the EDEL) was entitled to refer a dispute to adjudication.

What did the Judge Decide?

Mr Justice Constable held that Darchem was not a "Party" to the Subcontract in its own right and, therefore, could not refer the dispute to adjudication on behalf of EDEL. The Court gave the following reasons:

• Bilateral Drafting: the Subcontract was drafted bilaterally, rather than as a multilateral agreement.
• Words in the Singular: there were numerous references to the singular, "either", "both" and "the other" in the context of the "Parties".
• Specific Reference to Individual Entities: where a member of either JV was individually referred to, the Subcontract expressly provided for that. For example, where a constituent company suffered winding up, administration or liquidation, "a reference to that Party in this clause is deemed to be a reference to each such company individually" as per the terms of the Subcontract.

The Court then responded to Darchem’s arguments in turn:

• In response to Darchem’s argument that each constituent company is a “Party” by virtue that all four companies were the “Parties”, the Court found that it was "both linguistically and conceptually coherent” that “Parties” referred to the contractor and the Subcontractor and not all four companies.
• In response to Darchem’s argument that as clause 11.2(11) stated that "the Parties are the Contractor and the Subcontractor", the contractor and Subcontractor would count as additional "Parties", the Court rejected this on the basis that this interpretation would result in there being six “Parties” to the Subcontract rather than four. The linguistic markers in the Subcontract and the absence of contractual guidance on this point were held to make this construction impossible.
• In response to Darchem’s unilateral actions binding EDEL, the Court found that, as no notification was given, BYLOR did not exercise its right to treat a constituent company of EDEL as having the authority to bind the Subcontractor, Darchem had no entitlement to act unilaterally on behalf of EDEL.

For these reasons, Darchem was not a "Party" under the Subcontract, and enforcement of the adjudicator’s award was refused.

Is the Subcontract Construction Act Compliant?

An interesting point briefly considered by the Court was whether a dispute resolution clause that restricts JV members from referring disputes to adjudication is compatible with section 108 of the Housing Grants, Construction and Regeneration Act 1996 (the Construction Act). Section 108 provides a mandatory statutory right for "a party to a construction contract" to refer disputes to adjudication – a section which has traditionally been strictly interpreted by the Courts. However, in Darchem, the Court did not opine on this question as only an “analogous reference” to section 108 was made, rather than a full-bodied argument of non-compliance.

The drafting of the Subcontract’s dispute resolution clause is highly unusual in this regard: the drafters would have had to have been confident that it fell within a lacuna of the Construction Act, the judicial interpretation of which has historically been strict. Failure to comply with the Construction Act – in particular with mandatory statutory adjudication – would render the dispute resolution clause invalid, replacing it with the relevant provisions of the Scheme for Construction Contracts. It will be interesting to see, if and when this argument is raised in the future, how the Court responds.

What are the key takeaways from this judgment?

This case is a useful reminder of the issues that can arise due to indefinitive contractual drafting:

• If members of a JV are intended to be allowed to act independently and in their own names, this should be expressly provided for in the contract. Vague and inconclusive wording to that effect is clearly not enough, especially where the outcome of such an interpretation would be “potential chaos”; a point argued by BYLOR which the Court found persuasive in the context of adjudication proceedings.
• Where there is ambiguity, the Court will likely place significant weight on the broader drafting of the Subcontract: the Subcontract in Darchem was consistent with a bilateral agreement between the two JVs, as opposed to a multilateral agreement.