MillChris Developments Limited v Waters

[2020] 4 WLUK 45

MillChris, a contractor, sought an injunction to prevent a homeowner from proceeding with an adjudication saying that it would not have sufficient time to prepare its defence properly. MillChris noted that its solicitor had been forced to self-isolate at home which made it difficult to obtain evidence.  MillChris also noted that a site visit had been arranged which the solicitor would not be able to attend and further that it could not currently appoint an independent surveyor. MillChris had made similar submissions to the adjudicator saying that it was unable to comply with the timetable because of the COVID-19 outbreak, but the adjudicator had decided that the proceedings should continue but gave the contractor a two-week extension to respond. 

One current trend that comes out of the recent court judgments as well as comments from arbitrators is a desire to try and proceed where possible and practical. Here Mrs Justice Jefford refused to grant an injunction. This was not a case where there would inevitably be a breach of natural justice if the adjudication went ahead. 

For example, the papers could be transported or scanned to the solicitor and extra time had been given to contact the witnesses. The Judge also held that there was no need for both parties to be present at the site visit. The adjudicator could conduct the site visit alone.  The visit could be recorded, and the contractor could prepare a list of issues for the adjudicator in advance.

Obviously, each case will turn on its own facts, but the case (and only a summary of the judgment has been reported on Lawtel) suggests that adjudication business should, by and  large, continue as usual. The TCC, as always, will expect parties to be sensible, practical and take reasonable steps to  ensure that adjudications can proceed in line with the lockdown measures that currently apply.

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