Construction Muzzy Ltd v Davis Construction (South East) Ltd [2025] EWHC 2258 (TCC)
Background
This claim concerned the enforcement of two adjudicator’s decisions by way of Part 7 proceedings issued on 25 March 2025. The Claimant sought Summary Judgment against the Defendant in the sum of £261,191.44 plus interest. Defendant sought to resist enforcement on the grounds that the adjudicator lacked jurisdiction and that there a breach of natural justice.
The Defendant engaged the claimant under two separate construction sub-contracts in relation to what was described as “groundworks” (“Groundworks Contract”) and “drainage works” (“Drainage Contract”) in connection to works which took place at Conder in Epping, Essex. The Claimant commenced two adjudications on the grounds that the Defendant had failed to serve a valid pay less notice in relation to an application for payment. In the first adjudication, the Claimant asked the adjudicator to decide it was due £98,533.44 as claimed within their payment application dated 28 July 2024 (the “Groundworks Adjudication”). In the second adjudication, the Claimant asked the adjudicator to decide that it was owed £102,666.45 pursuant to a payment application dated 31 July 2024. Both contracts were entered into on the same terms.
Issues
The Defendant raised the following issues:
- There was a breach of the rules of natural justice in the Groundworks Adjudication due to the adjudicator placing significant reliance on an unsolicited surrejoinder submitted by the Claimant, for which no permission was given and the Defendant did not have opportunity to reply.
- The adjudicator lacked jurisdiction in the Drainage Adjudication, as it was substantially the same dispute as in the Groundworks Adjudication.
- Having failed to resign, the adjudicator’s approach to the Drainage Adjudication was one of predetermination rather than with an open mind.
Judgement
In relation to Issue 2, the Judge was not persuaded that there was any more than a fanciful prospect of success in the argument based on a breach of the rules of natural justice. In reaching this conclusion the Judge determined that the intended and actual function of the surrejoinder was to address new issues raised within the rejoinder. Further, reference to the surrejoinder was made at paragraph 2.49.6 of the Decision, and if one was to separate that paragraph from the remainder of the Decision, the others would have remained. Thus, the Judge found that the impact of the Surrejoinder did not drastically alter the adjudicator’s views or conclusions and in turn, had no real prospect of being found to have had any more than a minor aspect of the overall decision.
It was common ground that during the second adjudication, the Defendant refused to participate on the basis that the adjudicator lacked jurisdiction. In relation to Issue 3, the Defendant argued that the causes of action in both adjudications were the same, the Referral Notices being substantially identical and the adjudicator’s decision was decided in exactly the same way. The Defendant cited Coulson LJ in Sudlows v Global Switch Estates 1 [2023] EWCA Civ 813, a case regarding acceptance of repeated extensions of time, submitting that had a different adjudicator come to a different decision on the Drainage Adjudication, it would have been incompatible with the decision in the Groundworks Adjudication.
The Judge was not convinced by the Defendant’s arguments, pointing out that no authority had been provided to directly support their defence. The disputes arose out of separate contracts and to prevent the Claimant from enforcing the Drainage Adjudication decision on such basis would be contrary to the policy of the Scheme.
The Judge found in favour of the Claimant and awarded summary judgment.
For the full case, please see: Construction Muzzy Ltd v Davis Construction (South East) Ltd [2025] EWHC 2258 (TCC)
RNJM Ltd v Purpose Social Homes Ltd [2025] EWHC 2224 (TCC) (27 August 2025)
This case concerned an application for summary judgment in relation to the enforcement of the adjudicator Mr Wood’s decision to award the Claimant £132,884.72 (the “Wood Decision”).
The Defendant sought to resist enforcement in claiming that the adjudicator lacked jurisdiction due a false statement included by the Claimant within the RICS adjudication application form.
Background
The parties entered into a JCT Minor Works 2016 construction contract in November 2022 in relation to the construction of a three storey block of six one-bedroom apartments in Harrogate.
The Wood Decision was the fifth in a string of adjudications brought by the Claimant. The first adjudication was abandoned by the Claimant following a request from the adjudicator for security for his fees. The same dispute was then referred again to adjudication by the Claimant, with a specific request to RICS for an adjudicator who would not seek money on account or security for his fees.
A different adjudicator, Mr Bunker was appointed as adjudicator in relation to adjudications 2, 3 and 4, each of which were commenced by the Claimant in turn. Mr Bunker found in favour of the Claimant in relation to the second adjudication, but in favour of the Defendant for the third and fourth. The Claimant was directed to make immediate payment of the adjudicator’s costs in relation to the last two adjudications immediately. On 20 September 2024, Mr Bunker sent a letter to the Claimant’s representative (during the third and fourth adjudication), stating that he had not received payment. On 14 October 2024, Mr Bunker reminded the parties that they were jointly and severally liable for his fees and that if payment was not made, legal proceedings would be commenced.
The Claimant, now represented by Mr Birchall, wrote to the Claimant threatening a claim of £361,000 and commenced an adjudication seeking recovery of those sums on 7 November 2024. In the RICS application form, Mr Birchall stated that there was a conflict of interest with Mr Bunker, namely that there was a “Dispute over payment with Referring Party”. It was the Defendant’s argument that there was “a strong prima facie case that the Claimant deliberately or recklessly made a false statement in the process of applying to the Adjudicator Nominating Body in order to seek an advantage, meaning that the application is invalid and the appointment a nullity, such that the Adjudicator did not have jurisdiction”.
Issues
HHJ Kelly was asked to consider the following issues:
- Was the information provided false or, in other words, do the facts relied upon establish a dispute between the Claimant and Mr Bunker?
- Was the false information given either deliberately or recklessly as to its truth?
Judgment
The Parties both placed heavy reliance on the case of Eurocom v Siemens [2014] EWHC 3710 and EWHC 685 (TCC). In that case, Ramsey J was asked to consider the effect upon an adjudication whereby the referring party’s representative had represented on the application form that 13 potential adjudicators had conflicts of interest, when this was not true. Ramsey J found at paragraph 75 of his Judgment, that such “fraudulent misrepresentation would invalidate the process of appointment and make the appointment a nullity so that the adjudicator would not have jurisdiction”.
The Claimant sought to distinguish the above case on the basis that only two adjudicators were named by Mr Birchall and that there was a genuine concern that a dispute over payment could lead to bias of the adjudicator. The Defendant pointed out that the Claimant had failed to explain the nature of the dispute, further that there was no dispute as to payment, the adjudicator’s fees were simply not paid.
HHJ Kelly found in favour of the Defendant and dismissed the application for summary judgment on the basis that the Claimant had failed to adequately address the nature of the dispute, therefore the Defendant had a realistic prospect of successfully arguing its points on the lack of jurisdiction of the adjudicator.
For the full case, please see: RNJM Ltd v Purpose Social Homes Ltd [2025] EWHC 2224 (TCC) (27 August 2025)
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Mallas v Persimmon Homes Limited & Anor [2025] EWHC 2581 (TCC) (9 October 2025)
This case concerned the scope and extent of remediation works required to a property owned by the Claimant whereby it had suffered significant cracking to the foundations, beyond that which would be expected of a newly constructed house.
The property was a new build purchased by the Claimant in 2015 for £649,495 from the Defendant. The foundations of the house had been constructed by building trench strip foundations and installing a prefabricated timber frame.
Soon after its purchase, the Claimant discovered significant cracking forming within the property. It was common ground that the property was affected by differential movement. The makeup of the soil and the presence of clay meant that where trees had been removed prior to the development of the house, this could lead to changes in the hydrological characteristics of the soil. Clays are prone to desiccation and shrinkage, especially in such conditions, leading to ground heave. The trench strip construction method for the foundations was therefore inappropriate, due to being too shallow and therefore being affected by ground movement. Instead, piled foundations would have been the appropriate method, with piles secured at a depth below the affected area.
The Claimant issued its claim on 14 September 2021 for the rectification of the property, claiming breaches of clause 1 of the Building Contract as well as breaches of implied and express terms, negligence, misrepresentation and under the Defective Premises Act 1977.
The primary area of dispute was the scope of the remedial works. The claimant’s case was that the superstructure should be almost entirely demolished and rebuilt while the foundations were underpinned. The Defendant submitted that only underpinning was required and internal redecoration as necessary.
Deputy Judge Alan Bates showed a great sympathy to the claimant homeowner, however re-iterated that the burden of proof lies with them to prove the remedy claimed, is necessary and proportionate.
The claimant alleged there may be latent structural damage, however did not provide any evidence of this. The Claimant’s expert, Mr Andrew Dust, did not evidence this allegation in his report either. This was not looked on favourably, since the claimant had control of the site, it was within their gift to open it up to allow for investigations to take place and they did not. The claimant’s reasoning was he and his family were living in the house at the time.
The Judge remarked that he found Mr Dust’s evidence unconvincing, not only had he failed to evidence latent structural damage to the superstructure, he had also neglected to measure the width of the cracks in the wall. He was deemed to be a “tetchy” witness who became defensive, under cross examination, when questioned over his professionalism.
The Judge found in favour of the Defendant’s proposed rectification scheme on the basis that in each case, the Claimant failed to identify an evidential basis for why additional works were required.
For the full case, please see: Mallas v Persimmon Homes Limited & Anor [2025] EWHC 2581 (TCC) (9 October 2025)
Clegg Food Projects Limited v Prestige Car Developments Limited [2025] EWHC 2173
This case concerns the enforcement of an adjudication decision and defence raised by the Defendant on grounds of a breach of natural justice.
Chronology
The Defendant engaged the Claimant under a JCT Design and Build Contract in 2022 for the construction of a leisure and retail centre. Practical completion had been achieved, but the parties were in dispute over several items including: application for payment 37 (“AFP 37”), the Claimant’s entitlement to Extensions of Time (“EOT”) and Liquidated and Ascertained Damages (“LAD’s”).
In a true value adjudication between the parties, the adjudicator found that:
- The Defendant’s payment notice had undervalued the amount due to the Claimant in respect of the eight Relevant Changes, the EOT’s in dispute.
- The Claimant was entitled to EOT’s.
- As a result of the entitlement to EOT’s, the Defendant’s entitlement to LAD’s was reduced.
- The Claimant was also entitled to suspension and thickening costs.
The Defendant was ordered to pay £541,880.12 plus VAT plus interest to the Claimant. It is important to note that the adjudicator fully addressed the submissions of both parties within the 88 page decision in respect of the relevant issues.
The Defendant sought to clarify with the adjudicator, by email, the reasons and basis of his calculations and upon receipt of the adjudicator’s working, alleged breach of natural justice and claimed that the decision should not be enforced. The adjudicator responded, setting out the basis on which he reached his decision and disputing that he had breached natural justice.
The Defendant’s main contention was that the adjudicator had failed to provide the technical and evidential basis for the new rates used. Further, as the adjudicator had not informed the parties of his intention to use those rates, he had failed to provide the parties an opportunity to make the appropriate submissions, leading to a breach of natural justice.
Issues
The main issues before the Court at enforcement were:
- Was the adjudicator in breach of natural justice by failing to give the parties an opportunity to comment?
- Did the adjudicator fail to provide sufficient reasoning in his decision of 17 January 2025?
- If there was a breach, should any part of the decision be severed and enforced?
Judgment
In respect of the first issue, the Judge found the fact the adjudicator had been asked to determine the overall valuation of AFP 37 pertinent. The wording of the submissions made had both included the wording: “such as other sum as the adjudicator thinks fit”.
Further, following the precedent set down by Coulson J (as he was then) in Primus Build Limited v Pompey Centre Limited [2009] EWHC 1487, an adjudicator “is not required to consult the parties on every element of his thinking, even if some of his reasoning may be derived from, rather than expressly set out in, the parties’ submissions”.
Finally, given that the rates used fell generally between the calculations submitted by the parties and in some instances even benefitted the Defendant, there could be no argument that there was a significant prejudice or injustice in using those rates. The Judge considered that Defendant’s approach was excessively granular and legalistic; it was not so exceptional a breach of natural justice that it warranted avoiding enforcement.
In relation to the second issue, the Judge rejected the Defendant’s submissions on the basis that the Defendant’s interpretation of the Housing Grants and Construction Regeneration Act 1996 was too granular and unrealistic, making it inconsistent with the quick and practical nature of adjudication.
Given the adjudicator’s decision was 88 pages long, the Judge found that it contained enough detail to enable the parties to understand the basis of his conclusions “in the round”.
As a result of the above findings, the Judge did not consider it necessary to address the third issue.
The Judge found in favour of the Claimant.
For the full case, please see: Clegg Food Projects Limited v Prestige Car Developments Limited [2025] EWHC 2173