Bovis and the Trustees of the London Clinic ("the Clinic") entered into a JCT Standard Form of Building Contract 1998 as amended for the redevelopment of 3-5 Devonshire Place, London to form a medical consulting facility. The building contract completion date was 24 June 2005 but practical completion was not achieved until 4 August 2006. The architect had granted a four week extension of time ("EOT") and allowed £150,000 prolongation costs on account but then Bovis applied for further EOT's and prolongation costs. Bovis then commenced an adjudication claim for an EOT, reimbursement of the liquidated and assessed damages paid during the period of the claimed EOT by the Clinic and loss and expense arising from the delay and disruption, less the £150,000 already paid. There was argument in relation to the adjudicator's ability to decide the loss and expense claimed. The adjudicator decided that Bovis was entitled to the full EOT claim, the Clinic should reimburse Bovis for the liquidated damages and allowed, against the £3,287,245.44 claimed for loss and damage the amount of £1,879,257.09. The adjudicator ordered the Clinic to pay his fees and expenses.

The Clinic objected to payment on the basis that: (1) the adjudicator lacked jurisdiction to decide the loss and expense elements of the referral; and (2) that the timing and manner in which Bovis' claim was presented and subsequently prosecuted and dealt with amounted to an abuse of process and a breach of natural justice. Bovis commenced enforcement proceedings.

The Clinic claimed that the loss and expense claim was new and based on new expert evidence and therefore there was no crystallised dispute. Further, the nature and volume of new evidence served by Bovis for the purpose of the adjudication and the timetable imposed on the Clinic did not give the Clinic a fair and effective opportunity to respond to a new case. Therefore, the decision breached the rules of natural justice. Bovis contended that there was a crystallised dispute by the time the adjudication was initiated, the Clinic was given extra time it asked for, and therefore the adjudicator followed the rules of natural justice. The parties also questioned whether it was legally or practically possible to sever the adjudicator's decision if he did have jurisdiction to address the dispute relating to delay, EOT and recovery of liquidated damages but did not have jurisdiction to address the loss and expense claim.

After referring to Judge Jackson's propositions in Amec v The Secretary of State for Transport, Mr Justice Akenhead stated it was clear that the Courts bore in mind in that decision that prior to the commencement of the adjudication over the preceding six months there had been some discussions between the parties about the alleged defects. The Court held there was a dispute.

Mr Justice Akenhead stated:

"44. Unless the claim as presented in a given case is "nebulous and ill-defined" (as suggested in Jackson J's seventh proposition), the fact that a claim for payment is refused or not accepted on the basis that insufficient information has been provided will usually at least give rise to a dispute, part of which is whether or not sufficient information had been provided and, part of which, even if sufficient information had not been provided, would be whether there was some legal or contractual requirement for such information to be provided before a claim can be established as good. As has been said in the Court of Appeal however …, one needs to look at the history of the alleged dispute and consider the claim, which may or may not be rejected or not admitted, in context. Judges need to be cautious about requests for information made by a potential defending party in adjudications following receipt of a claim in circumstances in which the context suggests that it has a good idea what the claim is about.

45. In determining whether and when a claim is disputed, it is necessary to differentiate between whether a point taken by the potential defending party is one which truly goes to the issue as to whether there is a dispute and a potential substantive defence to the claim in question. Analysis will be required.

46. If a claim is presented which has never been put in any form before, it may take somewhat more than the day in the Amec case before a dispute can be said to arise. It may well be that, if the response to such a claim is a request for some further information, particularly in circumstances where the claiming party indicates a willingness to provide such information, a dispute may not arise until later.

47. Once it is clear that there is a crystallised dispute, it is necessary to differentiate between the substance of the dispute which is then referred to adjudication (or arbitration) and the evidence needed to support or contest that disputed claim. The fact that some of the evidence has not been formally or informally submitted by the claiming party before the adjudication is not, and is certainly not necessarily, in itself determinative of the ambit of the referred dispute.

In relation to the rules of natural justice, Mr Justice Akenhead referred to the following matters of principle which had been agreed with approval by the parties:

"(a) The fact that a dispute is complex or involves consideration of large volumes of material does not necessarily mean that any decision reached within an adjudication is procedurally unfair (see CIB Properties Ltd v Birse Construction [2005] BLR 173).

(b) The mere fact that there has been an "ambush" by the claiming party in an adjudication does not in itself amount to procedural unfairness (see London & Amsterdam Properties Ltd v Waterman Partnership Ltd [2003] EWHC 3059 (TCC) at paragraph 179)."

51. With regard to the question of "ambush", the statutory framework of the Housing Grants Construction and Regeneration Act 1996 is one which enables a party to a construction contract to refer anything, which might be classified as a dispute to adjudication, in the ordinary course of events for a decision to be provided by the adjudicator within 28 days of the reference. Therefore, the threshold to a reference to adjudication is simply and only that there is a crystallised dispute. Thus, if a dispute has arisen by 23rd December in a given year, the referring party may refer that dispute to adjudication on 24 December. That might give rise to an assertion that there has been an "ambush" because the defending party may well have insufficient time, given the Christmas break common in the construction industry, to prepare its defence. It is not uncommon, similarly, for claiming parties to refer matters to adjudication during the summer holidays when it is known that key personnel of the defending party are away. Again, this might be said to be an "ambush". However, for better or for worse, Parliament does not expressly give an adjudicator the power to extend the 28 days by reason of that fact. However, there is a sensible school of thought which suggests that in those circumstances an adjudicator can in effect decline to accept the appointment on the grounds that justice cannot be done or the adjudicator can simply say to the claiming party words to the effect: "Unless you agree to an extension of time I will not be able to produce my decision within 28 days." Indeed, that is commonly what adjudicators will do and it is a very rare case when the claiming party does not accede to some extension of time accordingly."

In relation to severability, Justice Akenhead referred back to his judgment in Cantillon. In the Judge's opinion, it was clear up to March 2007 that there was an expanding dispute between the parties as to responsibility for the delays that occurred on the project. Claims had been made for substantial EOT's and the Clinic and its advisors had only allowed four weeks. In relation to loss and expense, there was preceding applications by Bovis for payment of sums relating to delay and disruptions. Until late 2006, these claims were for monies on account. However, an expert's report was served in late December 2006 giving more detail. The Judge had no doubt that Bovis' claim for loss and expense as contained in the expert's report and the succeeding application for interim payment were disputed.

In relation to the claim that the letter was new, it was supported by different evidence and information to a limited extent and is substantially the same as the letter previously submitted. The Judge did not have to decide whether the new quantum material put forward was so new that it amounted to a new claim. He had formed a view that the whole of the contents of the draft Referral were in effect disputed by the Clinic. The Judge did not consider that in the circumstances that there was an ambush. Although Bovis had called for a response to its letter within two weeks it agreed to a full extension to that period requested by the Clinic. However, even if there was an ambush that in itself does not mean the dispute did not crystallise. Further, the adjudication clause was not limited only to claims that were established under the contract. In the ordinary course of events the adjudication clause was to be construed in a purposive and commercial way as inclusive. Therefore, the Judge was satisfied that the adjudicator had jurisdiction to address the whole claim which was referred to him including the claim for loss and expense.

In relation to natural justice, it was emphasised that it would be a rare case where there would be a breach of natural justice. The Judge was wholly satisfied that there had been no material breach of the rules of natural justice as during the course of the adjudication the Clinic or its advisors did not complain or even raise the assertion that it had insufficient time. Whenever the Clinic had asked for time the adjudicator granted that time and Bovis agreed to it. Further, the contents of the response and the rejoinder did not indicate that insufficient time had been allowed. It was argued that the adjudicator should have been able to see, infer or deduce that the Clinic had insufficient time but no point was raised on this topic and in a written pleading did not raise the issue and the Clinic was well represented by Council and solicitors. The Judge stated that it was difficult to see how they could have been in material breach of the rules of natural justice where, if it was material, the Clinic or its professional advisors did not see fit to mention it as something which was materially affecting them during the course of the adjudication. Therefore, the Judge did not consider there had been an ambush.

In relation to severability, this did not advise as the adjudicator had jurisdiction and there had been no breach of the rules of natural justice. If the Judge had to decide the point he would only have done so on the basis that the Clinic had established its jurisdictional argument in relation to the loss and expense claim (which it had not). If the Judge had formed the view that the adjudicator had not given the Clinic sufficient time to respond then this would not have been a case which would have led to severance. However, if, on a jurisdictional basis, he had formed the view that the crystallised dispute did include the claim for loss and expense he would have been of the view that that part of the decision which demonstrably related to the extension of time claim and the recovery of liquidated damages could be recovered. The award was one which was severable. The only difficulty would have come about the adjudicator's fees and expenses which were not proportioned.

Bovis' application for summary judgment succeeded and the decision was enforced.