Adjudication Case Law Update 2025: Part 4
In Part 4 of our 2025 Court Decision Summaries, Kenneth Salmon MCIArb, consultant solicitor to Slater Heelis Limited and Kuits LLP, summarises recent court decisions concerning the enforcement of adjudicators' Awards under the Housing Grants, Construction and Regeneration Act 1996.
This issue highlights ‘the usual suspects’: two cases on jurisdiction, including RNJM which is the subject of much debate; two examples of alleged breaches of natural justice; and a case on the circumstances in which a stay will be granted. The fifth case – Vision Construct – considers whether a payment notice could serve as a pay less notice.
In Part 4
Jurisdiction – alleged invalid application to nominating body
RNJM Ltd v Purpose Social Homes Ltd [2025] EWHC 2224 (TCC) Her Honour Judge Kelly (judgment 27 August 2025)
Jurisdiction – substantially the same dispute as previously decided
Construction Muzzy Ltd v Davis Construction (South East) Ltd EWHC 2258 (TCC) His Honour District Judge Baldwin (judgment 8 September 2025)
Natural justice – sufficiency of reasons
Clegg Food Projects Ltd v Prestige Car Direct Properties Ltd [2025] EWHC 2173(TCC) Her Honour Judge Kelly (judgment 19 August 2025)
Natural justice – reliance on unsolicited surrejoinder
Construction Muzzy Ltd v Davis Construction (South East) Ltd EWHC 2258 (TCC) His Honour District Judge Baldwin (judgment 8 September 2025)
Payment – can a payment notice serve as a pay less notice?
Vision Construct Ltd v Gypcraft Drylining Contractors Ltd [2025] EWHC 2707 (TCC) Adrian Williamson KC sitting as a deputy judge of the High Court (judgment 21 October 2025)
Stay
Providence Building Service Ltd v Hexagon Housing Association Ltd [2025] Mayor’s & City of London Court [M20CL073] HHJ Parfitt (judgment 22 September 2025)
Legislation
The ‘Act’ means the Housing Grants, Construction and Regeneration Act 1996, as amended by the Local Democracy, Economic Development and Construction Act 2009 Pt 8. The ‘new’ provisions apply to contracts entered into on or after 1 October 2011. The Act applies to England and Wales, Scotland and Northern Ireland.
The main regulations are contained in the Scheme for Construction Contracts (England and Wales) Regulations 1998 (the ‘Principal Regulations’).[1] They have been amended by the Scheme for Construction Contracts (England and Wales) (Amendment) (England) Regulations 2011 [2] (the ‘new Regulations’). The new Regulations apply only to contracts for construction operations in England entered into on or after 1 October 2011.
For earlier contracts, the Principal Regulations apply. Northern Ireland has its own scheme: the Scheme for Construction Contracts in Northern Ireland 1999, as amended by the Scheme for Construction Contracts in Northern Ireland (Amendment) Regulations (Northern Ireland) 2012. The Northern Ireland Scheme is broadly similar to that in force in England and Wales.
There are separate regulations for contracts for work in Scotland, applicable to contracts made on or after 1 November 2011. [3] The new Regulations apply only to contracts for work in Scotland entered into on or after this date. For earlier contracts, the Scheme for Construction Contracts (Scotland) Regulations 1998 [4] applies. There are new separate regulations for Wales, applicable to contracts for construction operations in Wales entered into on or after 1 October 2011. [5]
A reference to ‘the Scheme’ is to the Principal Regulations for England and Wales, or the Scheme for Scotland, Wales or Northern Ireland, as the context requires.
Summary
Jurisdiction – alleged invalid application to nominating body
RNJM Ltd v Purpose Social Homes Ltd [2025] EWHC 2224 (TCC) Her Honour Judge Kelly (judgment 27 August 2025)
In the process of applying to the adjudicator nominating body (ANB), the claimant made a statement to the effect that it was in dispute with a named adjudicator who had already dealt with several disputes between the parties. In consequence, the claimant argued there was a possible conflict of interest between the claimant and the adjudicator who should therefore not be appointed in the fresh dispute.
The court found that in the absence of a cogent explanation for the statement in the application, the defendant had a reasonable prospect of successfully arguing that the application to the ANB was invalid and the subsequent appointment a nullity, such that the adjudicator did not have jurisdiction and summary judgment was refused.
Jurisdiction – substantially the same dispute as previously decided
Construction Muzzy Ltd v Davis Construction (South East) Ltd EWHC 2258 (TCC) His Honour District Judge Baldwin (judgment 8 September 2025)
The same adjudicator reached decisions in two successive adjudications under separate subcontracts between the same parties. The principal issue in each case surrounded the validity of the subcontractor’s payment notice. In considering the issue afresh in the second adjudication, but in the same manner as the first, i.e. that the payment notice was valid, the adjudicator was not deciding ‘the same dispute’.
Natural justice – sufficiency of reasons
Clegg Food Projects Ltd v Prestige Car Direct Properties Ltd [2025] EWHC 2173(TCC) Her Honour Judge Kelly (judgment 19 August 2025)
An adjudicator asked to make a global valuation was not required to offer the parties the opportunity of commenting on the application of a ‘fair and reasonable rate’ when the rates applied were between the respective parties’ own rates and where he was applying the valuation rules in the contract. These valuation rules were based on the parties’ materials, and both parties had asked him to value at their respective valuations or such other sum as he should think fit.
The issues had been canvassed fairly. The figures he arrived at were, in some instances, more than the figures contended for by the defendant and it could not be said that the alleged breach was material or of considerable importance to the outcome. Although the adjudicator had provided additional calculations at the request of the defendant after publishing his decision, the reasons in the decision were sufficient and it had not been necessary for him to provide calculations of each item in the global valuation.
Natural justice – reliance on unsolicited surrejoinder
See Construction Muzzy Ltd (above)
Payment – can a payment notice serve as a pay less notice?
Vision Construct Ltd v Gypcraft Drylining Contractors Ltd [2025] EWHC 2707 (TCC) Adrian Williamson KC sitting as a deputy judge of the High Court (judgment 21 October 2025)
Vision Construct Ltd (VCL) sought declarations by way of Part 8 proceedings, concerning the payment provisions of a subcontract based on an amended JCT form of contract. They contended that the adjudicator had been wrong on three counts. First, to find Gypcraft’s application for payment number 23 was a valid payment application in accordance with the subcontract. Second, that VCL’s payment notice was in time, relying on an estoppel by convention allowing the payment notice to be given after the date in the valuation and payment schedule to the subcontract. Third and finally, VCL said that if its payment notice was out of time, it was also an effective pay less notice and unarguably in time.
The court held that the payment notice was effective in accordance with the subcontract; that the estoppel argument required evidence and was unsuitable for determination in the evidence-free zone of Part 8; and that VCL’s payment notice was what it said it was, and could not be converted retrospectively into a pay less notice. Although not a case upon the enforcement of adjudicator’s award, it is reported briefly for its reasons for rejecting a payment notice as being an effective pay less notice.
Stay
Providence Building Service Ltd v Hexagon Housing Association Ltd [2025] Mayor’s & City of London Court [M20CL073] HHJ Parfitt (judgment 22 September 2025)
A stay of execution against the adjudicator’s award was granted pending the imminent hearing in the Supreme Court of an appeal by Hexagon against the decision of the Court of Appeal in favour of Providence as to the validity of the termination of the contract by Providence. This gave rise to the award where:
- The appeal had an arguable prospect of success;
- Providence would be unable to repay the sum awarded by the adjudicator if ordered to do so;
- The inability to repay was not caused by any of the Wimbledon exceptions; and
- A plea of ‘manifest injustice’ could not be used to replace the need for ‘special circumstances’ to avoid a stay.
Court decision summaries in full
Jurisdiction – alleged invalid application to nominating body
RNJM Ltd v Purpose Social Homes Ltd [2025] EWHC 2224 (TCC) Her Honour Judge Kelly (judgment 27 August 2025)
The claimant, RNJM, applied for summary judgment to enforce the award of an adjudicator (Mr W) ordering the defendant to pay them £130,000. The defendant opposed the application on the grounds that there was a false statement in the claimant’s application to the ANB – the Royal Institution of Chartered Surveyors (RICS) - to the effect that there was a dispute about fees between the claimant and the adjudicator who had been appointed to decide previous disputes between the parties.
Background
This was the fifth adjudication between the parties. In the first adjudication, the adjudicator asked for security for his fees. The claimant withdrew their referral and asked RICS to appoint an adjudicator who did not require security of their fees. Mr B was appointed adjudicator for the second, third and fourth adjudications. In the third and fourth adjudications the claimant was ordered to pay Mr B’s fees. When they failed to do so, the fees were paid by the defendant.
In the fifth adjudication, in the conflict of interest section of the RICS nomination form, the claimant’s representative stated there was a dispute between the claimant and Mr B – a ‘dispute over payment with referring party’. No further information relating to the alleged conflict of interest was provided. The defendant’s solicitors emailed the RICS and the claimant’s representative (sharing a copy with the claimant) stating that there was not a conflict or any dispute concerning Mr B’s fees between the claimant and Mr B. They said the claimant had chosen not to discharge their liability to pay the fees when directed to do so by Mr B.
The defendant’s solicitor asked the claimant for details of the alleged dispute, but the request was ignored. RICS appointed a different adjudicator, Mr W, who discovered that he was bound by the previous adjudicator’s findings as to repudiation, and awarded the claimant damages.
The law and the issue before the court
The test for summary judgment was set out in Civil Procedure Rule (CPR) 24.3. The court was referred to cases that set out the principles that needed to be applied, and to Eurocom v Siemens [2014]. [6] The latter was referred to in the RICS guidance on conflicts of interest and in relation to statements made in respect of applications for a nomination, which warned that false statements could result in the appointment being invalid and any subsequent decision a nullity for lack of jurisdiction.
The issue before the court was whether the defendant could successfully argue that the claimant either deliberately or recklessly made a false statement in the process of applying to RICS for an adjudicator.
The judgment
On the evidence and consideration of the submissions, the court concluded that the claimant had provided no adequate reasons for asserting that there was a conflict of interest between them and Mr B. There was no dispute as to the award of, or the amount of, his fees. There was no attempt to justify their concern that there was a risk or perception of apparent bias because Mr B had found it necessary to threaten legal action against both parties unless his fees were paid, or because it was the defendant, and not the claimant, who had paid them.
The court found it relevant that the severe consequences (if a potential conflict was not justified that the adjudication will be void) were not addressed by the claimant’s evidence. The defendant had ‘a realistic prospect of successfully arguing the various points it raised about the lack of jurisdiction of the adjudicator on the basis that the claimant made a false statement about a conflict of interest on the adjudication referral form’. The court clarified that it made no final finding on the questions, merely that the short route of summary enforcement was not available to the claimant.
In the circumstances, a secondary question as to whether there should be a stay did not need to be addressed.
Jurisdiction – substantially the same dispute as previously decided
Construction Muzzy Ltd v Davis Construction (South East) Ltd EWHC 2258 (TCC) His Honour District Judge Baldwin (judgment 8 September 2025)
The claimant subcontractor applied for summary judgment to enforce two adjudication awards in its favour. The defendant contractor opposed the applications on several grounds, alleging breach of the rules of natural justice in the first adjudication, lack of jurisdiction in the second adjudication, and bringing Part 8 proceedings to determine the validity of the payment notices in each case.
The defendant employed the claimant to carry out groundworks under the first subcontract and drainage works under the second subcontract, in each case in respect of the same site in Epping, Essex. The two subcontracts were on the same terms. The claimant made payment applications under each subcontract, and the defendant disputed the claimed entitlement. In two successive adjudications, the same adjudicator was asked to decide what, if any, sum was due. In each case, he found in favour of the claimant and awarded them the sum claimed.
The defendant participated in the first adjudication. Having lost, they later objected to the same adjudicator in the second adjudication and contended he had no jurisdiction as the second adjudication raised the same or substantially the same dispute as had been decided in the first adjudication, namely whether the claimant’s payment application was valid.
In the first adjudication, the claimant had submitted a short but unsolicited surrejoinder to answer the defendant’s permitted rejoinder. The defendant contended that the adjudicator ought not to have had any regard to the surrejoinder but had, in fact, in breach of the rules of natural justice, placed significant reliance on it and it had influenced his decision, such that the claimant had obtained an unfair advantage.
The defendant raised the same jurisdictional and fairness issues before the court. They argued that even if the adjudicator had jurisdiction in the second adjudication, he had predetermined the issue as to the validity of the payment notice, having previously decided the payment notice in the first adjudication was valid.
Natural justice
The court found that the claimant had not stolen an unfair advantage in serving a rejoinder without permission. It was no more than a succinct rebuttal of several new and detailed arguments in the rejoinder supporting a case of implied payment terms. It was ‘patently clear … that the adjudicator's approach to the contents of the surrejoinder [did] not come close to being more than peripheral to or sufficiently decisive or important in the decision-making process, in the way contended for’. The defendant had no real prospect of success on the natural justice issue.
Jurisdiction in the second adjudication
While the issues arising on the referral notices in both adjudications were the same and concerned the payment regime under the two subcontracts and the validity in each case of the payment application and payment notice, the disputes arose under two separate and distinct subcontracts. To uphold the defendant’s objection would have been to deny the claimant its statutory right to adjudicate its claim under the second subcontract because it had succeeded in a similar claim under the first subcontract. On proper application of the principles in Sudlows, [7] the defendant’s case was hopeless. There was no prospect of persuading a court that these disputes were the same.
Pre-determination
The judge was not satisfied that there was anything more than a fanciful prospect of persuading a court at trial that the adjudicator had predetermined the result of the second adjudication by reason of his findings in the first adjudication. By refusing to participate (albeit under a reservation), the defendant left itself open to an unopposed finding similar to that in the first adjudication and gave the adjudicator ‘no ammunition’ to proceed differently. Crucially, the adjudicator did not approach matters on a ‘default basis’ but properly reviewed the evidence before reaching a decision on that evidence. This was not a situation the judge felt ‘gets off the ground’. Summary judgment granted.
Natural justice – sufficiency of reasons
Clegg Food Projects Ltd v Prestige Car Direct Properties Ltd [2025] EWHC 2173(TCC) Her Honour Judge Kelly (judgment 19 August 2025)
The claimant contractor sought to enforce an adjudicator’s award in its favour against the defendant employer, in a dispute arising out of an amended joint contracts tribunal (JCT) Design and Build Contract for the construction of a leisure and retail centre in Bishop Auckland, County Durham.
The background
The dispute arose out of an application for payment 37 following practical completion, in respect of which the defendant gave a payment notice for a lesser sum. The issues then included the valuation of eight variations (agreed to be ‘changes’, but not agreed as to value), the claimant’s entitlement to a time extension and prolongation costs. The defendant claimed liquidated damages (LDs) for the delay.
The adjudication
The dispute was referred to adjudication by the claimant, who asked the adjudicator to decide the value of Application 37, including the eight changes and loss and expense in the sum claimed or such other sum as the adjudicator might decide. The defendant asked the adjudicator to value the Application in the sum it asserted was correct, taking into account the LDs claimed, or such other sum as the adjudicator might determine. Neither party sought any declarations or findings as to the value of individual items within the application. In fact, each of the eight changes comprised sub-items, but the claim for valuation remained global in nature.
After the deduction of LDs, the adjudicator awarded the claimant £541,880.12 plus VAT and interest at 10%. His decision ran to 88 pages. He set out clearly the dispute which had been referred to him and details of the determinations sought by both parties in respect of the gross valuation of Application 37. He then gave details of the submissions and correspondence received from both parties in relation to what should be retained and the sums and period sought in respect of LDs and the extensions of time (EOTs).
He gave reasons for his decision in respect of the EOTs and the LDs, broadly setting out the submissions made by both parties. The adjudicator then considered the value of the eight changes, again setting out the submissions of the parties in respect of each change, before giving his reasons for the amounts he decided were due.
Where the adjudicator decided to use his own ‘fair and reasonable’ rate, after setting out the positions of each party, he explained that he had considered the work involved in respect of each of these disputed values, using his own ‘first principles view’ of the work involved and the valuation rules in clause 5 of the contract and setting out the rate. In relation to the single remeasurement, he explained his reasons for the remeasurement and why he thought that the defendant’s calculation was wrong.
Following the making of his decision, the adjudicator was asked by the defendant’s solicitors to explain the reasons for using and the basis on which he had applied ‘fair and reasonable rates’ in respect of five of the changes. In response, the adjudicator provided his workings. Still not satisfied, the defendant’s solicitors said they should have been told what he intended to do and been given the opportunity to address him as to the rates. They complained of a breach of the rules of natural justice. The adjudicator replied that he did not agree and explained that he had done what he was asked by both parties to do – namely, to decide the gross value of the Application. The defendant now defended the enforcement proceedings, alleging a breach of the rules of natural justice and failure to provide coherent reasons.
The law
The parties agreed on the applicable legal principles to be found in previous cases –19 of which were cited, as well as chapter 18 of Keating on Construction Contracts 12th Ed. [8] The judge set out the principles to be derived from the cases:
- There must be a realistic prospect of establishing a breach of the rules of natural justice or an excess of jurisdiction by the adjudicator.
- Enforcement is not refused for mere error of fact or law.
- Any breach of the rules of natural justice must be material (Cantillon Ltd v Urvasco Ltd), or more than peripheral. For example, the adjudicator failing to bring to the attention of the parties an issue or point which may be decisive or of considerable importance.
- It was a question of fact and degree in any given case.
- An adjudicator can come to a position which is somewhere between the parties’ respective positions. In particular, the adjudicator could decide to crudely ‘split the difference’ without further consultation with the parties (Arcadis UK Ltd v May and Baker Ltd).
Findings
The Judge decided that the adjudicator had not breached the rules of natural justice in failing to go back to the parties for additional submissions in respect of ‘fair and reasonable’ rates and the single remeasurement. Each party specifically asked the adjudicator to award the amount each of them submitted for the gross valuation or ‘such other sums as the adjudicator shall see fit’. The adjudicator was not tasked with making declarations as to the individual rates when valuing the sub-items within each of the disputed changes
It was relevant that he was asked to make an overall gross valuation of Application 37. It was acceptable for the adjudicator to come to a different view from the parties in respect of the value of a particular item considered to be fair and reasonable using the documentation provided and submissions made by the parties. The adjudicator did not fill in a gap in the evidence, as the defendant had argued.
The issues were canvassed fairly. The court regarded it as significant that, in respect of each ‘fair and reasonable’ rate and of the single remeasurement item used to calculate the gross value of each change, that value was an intermediate position between those contended for by the parties or was more favourable to the defendant. Had the adjudicator split the difference between the parties, the defendant accepted it could have had no complaint. It would be wrong to accept the defendant’s ‘granular’ approach. It was accepted that some justification for reaching the global figure was needed, and that was given.
The defendant must also establish that any breach, if proved, was material. They failed to do this. The defendant had suffered no substantial injustice as a result of the adjudicator’s approach. In all but two cases, the use of a fair and reasonable rate was more favourable to them than their own rates. Where a less favourable rate was applied, the difference was less than £2,600 or less than 0.2% of the total value of changes.
The reasons
The adjudicator had given sufficient reasons for his decision and had not been asked to declare the value of each item or sub-item. The fact that the adjudicator answered the defendant’s request for further explanation and workings did not mean his original reasons were inadequate. The reasons given were intelligible, and the defendant was unable to demonstrate that they had suffered substantial prejudice. The decision would be enforced.
Natural justice – reliance on unsolicited surrejoinder
See Construction Muzzy Ltd (above)
Payment – can a payment notice serve as a pay less notice?
Vision Construct Ltd v Gypcraft Drylining Contractors Ltd [2025] EWHC 2707 (TCC) Adrian Williamson KC sitting as a deputy judge of the High Court (judgment 21 October 2025)
In Part 8 proceedings, VCL sought declarations as to the proper construction of the contract payment mechanism used in the parties’ subcontract. Gypcraft had succeeded before an adjudicator as to the proper analysis of payment cycle 23 over January and February 2023. The adjudicator decided that VCL should pay Gypcraft £216,947.75 plus interest, finding that (a) Gypcraft had served a valid interim payment application 23; (b) VCL had failed to serve either a payment notice or a pay less notice in response as required; and (c) Gypcraft's interim payment application 23 was payable in the amount applied for, in accordance with section 110B(4) of the Act. VCL paid the sums awarded but submitted that the declarations sought, or any, if granted, would invalidate the adjudicator’s decision, so that the sums would fall to be repaid to them.
VCL’s case was based on three contentions:
- That interim payment application 23 was not in accordance with the subcontract. The subcontract failed to adequately identify a relevant interim valuation date for payment cycle 23, meaning that clause 4 of the subcontract had to be rewritten to accord with Part 2 of the scheme. This means that Gypcraft had no right to submit an application for payment before the new statutorily imposed date. Although not pleaded, it was said to require no evidence.
- There was a course of conduct between the parties under which a convention arose that Gypcraft would accept VCL's payment notice 23 out of time. From a table of dates, it was apparent that payment notices were late without complaint by Gypcraft. Gypcraft sent its invoice and accepted what was paid.
- The boldest claim was that VCL’s out of time payment notice had all the necessary ingredients of a pay less notice, was effective to serve as such, and was in time.
The court refused to make any of the declarations sought.
As to point one above, the subcontract and its payment schedules had all the necessary dates to comply with the Act. VCL argued there were no interim valuation dates. That was an impossible reading of the schedule which contained sub-contractor submission valuation dates. It was clear from footnote four that the expression ‘sub- sub-contractor submission valuation date’ did not refer to applications for payments, but to the valuation of those applications.
The second way VCL put this case – that interim payment applications were to be submitted on the interim valuation date, and not four days in advance of it so that they would not be submitted in accordance with the subcontract – failed for a number of reasons. First and foremost because footnote four does not say that applications for payment were to be issued on the valuation date but ‘by end of business on the valuation date above’. Reading the provision with clause 4.6.3.1 of the subcontract, as one should, Gypcraft would have to comply with both obligations. In fact, a compliant payment application submitted four days prior to the interim valuation date would also comply with the schedule.
As to point two above, the court noted that the Court of Appeal had said that ‘Part 8 proceedings are wholly unsuitable for the trial of an issue of estoppel’. [9] In this case, a necessary element was ‘reliance’ and this would require evidence. It did not follow that because Gypcraft had accepted late payment notices in the past, that they were prevented from relying on the lateness of the payment notice in payment cycle 23. The alleged convention of late acceptance clearly required evidence which was not present. The issue was unsuitable for Part 8 determination.
Regards point three above, this was described as ‘an ambitious submission’. The payment notice was titled and described in several places as such and clearly intended to be given and received as what it said it was. Any other reading of the document would be entirely artificial. It would undermine the Act and the subcontract if what the parties clearly intended at the time to be a payment notice could somehow retrospectively be converted into a pay less notice. As Coulson J (as he then was) observed in Grove Developments Limited v S&T (UK) Limited [10], a payment or pay less notice must make plain what it is.
Stay
Providence Building Service Ltd v Hexagon Housing Association Ltd [2025] Mayor’s & City of London Court [M20CL073] HHJ Parfitt (judgment 22 September 2025)
There had been two adjudications between the parties following disputes arising under a JCT Design and Build Contract in 2016 for the construction of a residential development. In the first adjudication, Hexagon (the employer) successfully challenged the validity of Providence’s (the contractor) termination. Providence later successfully appealed against that finding in the Court of Appeal. Off the back of this, they started a second adjudication, claiming damages upon a termination final account. They succeeded before the adjudicator – who, based on the finding of the Court of Appeal that its termination was lawful – awarded them £440,587. Hexagon appealed to the Supreme Court against the Court of Appeal finding, and that appeal was pending.
In the current proceedings in the Mayor’s and City of London Court, Providence sought summary judgment to enforce the second adjudicator’s award. Hexagon applied for a stay of execution of the judgment on the grounds that Providence was in financial difficulties and would be unable to repay the adjudication sum if called upon to do so. This would be the case if the Supreme Court upheld its appeal that Providence’s termination had been unlawful.
The legal basis for a stay was Civil Procedure Rule (CPR) 83.7(4). On the evidence, the court found that Providence would not be able to repay the adjudication sum if ordered to do so. Its net asset position had changed from £1.1 million before the contract to £371,006 by June 2024. That change was not caused by Hexagon’s failure to pay the adjudication sum, but by litigation costs and other unrelated matters, such that the exceptions laid down in Wimbledon v Vago [11] did not apply.
The court took the view that Hexagon had at least an arguable case that Providence had not lawfully terminated the contract, noting its right to payment was entirely dependent on the validity of the termination. Providence claimed that it would suffer ‘manifest injustice’ if a stay was granted and that winding up proceedings to which it would be susceptible might intervene. The court declined to equate ‘manifest injustice’ with the ‘special circumstances’ that were required by CPR 83 before a stay might be avoided. The hearing of the appeal to the Supreme Court was by then imminent (10 November 2025).
Granting the stay, the court considered the tension between the need to uphold the adjudication regime and the potential consequences of Providence’s financial difficulties. It held it would be inexpedient to allow enforcement prior to the Supreme Court outcome, which might mean that Hexagon succeeded but was unable to recover the judgment sum. It found this risk outweighed the risks of keeping Providence out of its money until the appeal was determined. The stay was tailored to the Supreme Court hearing timeline and the proposed Order, which obliged Hexagon to pay Providence the day after should the Supreme Court appeal be dismissed. Providence would not be kept out of its adjudication money any longer than necessary to achieve finality on the termination issue.
Comment
Two points are worthy of note. First, that the risk of manifest injustice (and it appears it was a real risk in this case) did not equate to ‘special circumstances’ as that requirement features the relevant CPR provisions. Justice or injustice was presumably always considered, and this does not mean that any ‘manifest injustice’ in striking a balance would have changed the outcome in this case. Second, that the nearness of a final determination of the underlying question of the validity of the termination was so imminent (less than a month away) it could hardly be ignored and must have played its part.
Given that the Wimbledon exceptions did not apply, the outcome is perhaps unsurprising.
[1] Scheme for Construction Contracts (England & Wales) Regulations 1998 (SI 1998/649).
[2] Scheme for Construction Contracts (England & Wales) (Amendment) (England) Regulations 2011 (SI 2011/2333).
[3] Scheme for Construction Contracts (Scotland) Amendment Regulations 2011 (SI 2011/371).
[4] Scheme for Construction Contracts (Scotland) Regulations 1998 (SI 1998/687) (S.34).
[5] Scheme for Construction Contracts (England and Wales) Regulations 1998 (Amendment) (Wales) Regulations 2011 (SI 2011/1715) (W.194).
[6] EWHC 3710 and EWHC 685 (TCC)
[7] Sudlows v Global Switch Estates 1 [2023] EWCA Civ 813.
[8] Sweet & Maxwell Ltd, 2024.
[9] ING Bank NV v Ros Roca SA [2012] 1 WLR 472
[10] [2018] BLR 173 at [29]
[11] Wimbledon Construction Co 2000 Ltd v Vago [2005], EWHC 1086; and see Gosvenor London Ltd v Aygun Aluminium Ltd [2018] EWCA Civ 2695
Kenneth Salmon MCIArb is a qualified solicitor in England, Wales and Eire. He is a Ciarb qualified and practising Mediator and Chair of Education at Ciarb North West Branch. Kenneth is a construction specialist currently working as a consultant to Slater Heelis Limited and Kuits LLP. He has extensive experience of all forms of dispute resolution including arbitration, adjudication, expert determination and mediation.
He is the author of Cases on the Enforcement of Construction Adjudication Awards (2012) and the series Cases (on adjudication enforcement) published in Ciarb’s academic journal Arbitration: The International Journal of Arbitration, Mediation and Dispute Management 1999-2017 and as now published in Ciarb’s newsletter from 2018 to present.
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Other articles by Ken:
Adjudication Case Law Update 2025: Part 1
Adjudication Case Law Update 2025: Part 2
Adjudication Case Law Update 2025: Part 3
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