Adjudication is a form of alternative dispute resolution which, as a result of the Housing Grants, Construction and Regeneration Act 1996, may be available to a party to a construction contract in England and Wales. This is a relatively quick process, lasting a total of 28 days, with the potential of being extended a further 14 days, with the referring party’s consent. Courts have been very hesitant to interfere with this process since its implementation.
For instance, in the case of Home Group Ltd v MPS Housing Ltd [2023] EWHC 1946 (TCC) (25 July 2023), the court refused to find grounds for a breach of natural justice in the situation where too many documents were included within the referral to review in time. In total, this particular referral included a ‘quantum expert report of 155 pages, with 76 appendices, which comprised 202 files in 11 sub-folders, amounting to 338 megabytes of data and a further 2,325 files in 327 sub-folders and five factual witness statements (which amounted to 88 pages, with hundreds of exhibited pages sitting behind)’. Despite this, the court expressed that high time pressures are in the very nature of the adjudication process, suggesting spot checks of documents could be implemented where overwhelmingly high numbers of documents are included in submissions.
In the case of Beck Interiors Ltd v Eros Ltd [2024] EWHC 2084 (TCC), 6 adjudications were brought by the Defendant, 4 of which were commenced within the space of 13 days. Beck sought an injunction to prevent any further adjudications being brought against them, on the basis that it was ‘unreasonable’ and ‘oppressive’ for so many adjudications to be brought at once, offering no time or resources to respond effectively.
The Judge held that even though Beck had an ‘inevitable burden’ in facing so many adjudications simultaneously, this was simply the ‘product of the right to commence adjudication at any time’. The Judge considered that to interfere with that right would be to open the door to policing adjudications, something which should only be done in exceptional circumstances. In reaching their conclusion, the Judge referenced Dorchester Hotel whereby Coulson J stated ‘It will only be appropriate in rare cases for the TCC to intervene in an ongoing adjudication. It is important that, wherever possible, the adjudication process is allowed to operate free from the intervention of the Court.’
As established in Twintec Ltd v Volkerfitzpatrick Ltd [2014] EWHC 10 (TCC), for the courts to intervene, the adjudication must be both ‘unreasonable’ and ‘oppressive’. The Judge gave the example of an adjudication referral being ‘unreasonable’ if deliberately delayed until shortly before Christmas, and ‘oppressive’ where all relevant personnel within the responding party have been posted abroad. These elements do not necessarily go hand in hand. However, for an injunction to apply on these grounds, they must both be present and to a fairly high degree. This has created a very high threshold, and will only be applicable in very rare cases.
What does this mean?
You should not expect the court to intervene in the adjudication process as injunctions of this nature are very rarely successful. Preparation is key. Parties have the right to adjudicate ‘at any time’; therefore, it is important to recognise disputes and prepare before they reach this stage, as too often parties find themselves caught out on the other end of a referral.
To find out how Barton Legal’s specialists can help you, please click here.
Please note, this article and any accompanying video or presentation are for educational and marketing purposes only. It must not be used for giving advice in any shape or form, and it is not a substitute for legal advice. The author does not accept responsibility for loss howsoever occasioned to any person or persons acting or refraining from action as a result of this material.
