Dalkia subcontracted to Bell certain repair and painting works at 143 stations and 22 footbridges owned or controlled by Central Trains. The parties agreed that this was a construction contract in writing, but they disagreed over whether or not Bell's standard terms and conditions were incorporated into that contract.

During 2008 Bell sought payment from Dalkia for sums they allege were due, including variations. When no further payment was forthcoming from Dalkia, Bell commenced adjudication proceedings. Bell served an initial notice of adjudication on 1 December 2008 which named an adjudicator. Dalkia did not respond until late on 8 December and disagreed about Bell's nomination. In order to avoid any technical arguments Bell served a second notice of adjudication by fax on 8 December and recorded delivery on 9 December.

On 9 December Bell sought a nomination from the RICS by letter, which was received by the RICS on 10 December. The RICS nominated Mr Geoff Brewer as adjudicator on 11 December, who was duly appointed on 15 December. The parties agreed that this procedure was conducted with reference to Bell's terms and conditions. Both before and after the adjudicator was nominated, and in front of Mr Justice Coulson, Dalkia submitted the following points:

1. The Bell standard terms and conditions were not incorporated into the contract;
2. If they were, the Bell standard terms and conditions did not comply with section 108, and so therefore the Scheme applied instead;
3. The adjudicator did not have the jurisdiction to decide the dispute referred to him, principally because:

a. He had been appointed under the Bell standard terms and conditions and not the Scheme;
b. The approach to the RICS took place before the provision of the notice of adjudication to Dalkia;
c. The notice of adjudication purported to refer more than one dispute to the adjudicator.

The adjudicator had decided that Bell's standard terms and conditions were incorporated and that he did have the necessary jurisdiction. Whilst the adjudication was ongoing, Dalkia commenced proceedings in front of Mr Justice Coulson under CPR Part 8, for declarations of the above issues. In response, Bell disputed each of these points and submitted that the entire claim was unsuitable for CPR Part 8 and/or an abuse of process, and that the court did not have the jurisdiction to deal with the application.

The Judge decided that the current proceedings were suitable for CPR Part 8. Bell had submitted that there were two matters of fact in dispute. Mr Justice Coulson held that one matter in dispute was irrelevant to the issue of the terms of the contract, and the other matter was a matter of law not fact.

The Judge further held that he should not decline to deal with the issues on the grounds of abuse of process.

"I am particularly troubled by the unacceptable and unexplained delay [by Dalkia] of over three weeks from 19th December to 14th January prior to the commencement of these Part 8 proceedings, … However, … I have reached the conclusion that, on balance, I should not dismiss Dalkia's Part 8 claim simply because of that conduct, however regrettable I may regard it. If Dalkia are entitled to a declaration to the effect that the adjudicator does not have the necessary jurisdiction to decide this dispute, it would still be better for everyone if, having got this far, that declaration were granted now, rather than everyone waiting for the point to arise in subsequent enforcement proceedings."

The Judge thought the court did have jurisdiction to deal with the CPR Part 8 application. Bell had stated, firstly, that Dalkia had given the adjudicator authority to reach a binding decision on his own jurisdiction, which could not therefore be opened up by the court. Secondly, because the parties were agreed there was a construction contract in writing, the question of whether a certain set of terms and conditions were incorporated was a decision he was entitled to make as part of the dispute referred to him, and the court had no jurisdiction to review or overturn that decision. The Judge disagreed. It was clear from correspondence that Dalkia had reserved their right to challenge throughout the nomination and adjudication process. If the matter of incorporation of Bell's standard terms and conditions had arisen before the court in enforcement proceedings, then the court would not have the power to review the decision. But, as these were CPR Part 8 proceedings and the court were being asked to give final determination on the issue, The Judge decided he "should not duck that issue".

In the event the Judge approved the decision of the adjudicator. There were a number of legal and factual reasons the Judge gave for deciding in favour of Bell, but he also illustrated the decision in a rather more pragmatic manner:

"it seems to me that Dalkia's case amounts to this: that, even if a tenderer has made clear that his quotation, and any eventual contract, will incorporate his terms and conditions and, even if that suggestion is not discussed, let alone queried or challenged by the other party, if those terms and conditions are not re-stated again when the final discussions as to price take place, they somehow become irrelevant and form no part of the contract agreed between the parties. No authority was provided for such a startling and, I would suggest, artificial conclusion, and I reject it."

The next issue to be decided was whether the Bell standard terms and conditions complied with the Act. If not, the Scheme would apply instead. The clause in issue was 12.4:

"12.4 Upon the appointment of the adjudicator, the parties shall comply with all the directions which he may issue for the purposes of considering the facts and issues in the dispute and so that the adjudicator shall notify his decision to the parties not later than 28 days from the date of the referral to him, or such longer period as is agreed by the parties after the dispute has been referred and the adjudicator may extend the period of 28 days by up to 14 days with the referrer's consent. The adjudicator's decision shall nevertheless be valid if issued after the time allowed. The adjudicator's decision shall state how the cost of the adjudicator's fee shall be apportioned between the parties and whether one party is to bear the whole or part of the reasonable legal and other costs and expenses of the other party relating to the adjudication. It shall be a condition precedent to the appointment of an adjudicator that he shall notify the parties that he will comply with this condition and its time limits."

Dalkia submitted that the wording in bold provided an open ended extension to the adjudication time limits which was therefore not in accordance with the Act. However, it was held that this clause simply allowed the adjudicator a small extension in which to issue his decision not reach it. As such it was not inconsistent with the Act. In any event, if the Bell conditions were not incorporated, or the Bell conditions were non-compliant with the Act, this would not have any effect on the adjudicator's jurisdiction.

As to the remainder of Dalkia's jurisdictional arguments, the Judge decided as follows:

1. The adjudicator's appointment did not contradict the Bell terms and conditions. Dalkia submitted that the parties were required to attempt to agree an adjudicator before approaching the RICS as nominator. The Bell terms and conditions did not make such a sequence a condition precedent to adjudication.

2. The notice of adjudication did not need to be served prior to the approach to the RICS. The Bell terms and conditions, which would dictate whether such a sequence was necessary, did not require the notice of adjudication to be served prior to the approach to a nominator. In any event, Mr Justice Coulson decided that the notice of adjudication did as a matter of fact reach Dalkia before the approach to the RICS.

3. Bell had only referred one dispute to the adjudicator. The Judge decided that there was only question the adjudicator was asked to decide: "what, if anything, is due from Dalkia to Bell pursuant to the contract?" This, contrary to Dalkia's submissions, would encompass the claims under the contract and any relevant variations in one dispute.