Dawnus Construction Holdings Limited, a construction company, sought summary judgment on its application to enforce an adjudication decision against Marsh Life Ltd, a developer. This case reviewed the right to challenge enforcement of adjudication decision as well as the adjudicator’s potential breach of natural justice.

Marsh was a special purpose vehicle which was set up to develop a site known as the Lifeboat Quay in Poole and build a hotel complex. The parties entered into a JCT 2011 Design & Build Contract on 25 July 2014. Several delay events during the project delayed the completion date for more than a year. Although the project was completed, the Contract was terminated in disputed circumstances. There were four adjudications between the parties where the fourth adjudication was referred to TCC by Dawnus for enforcement. The fourth adjudication decision directed Marsh to pay Dawnus sum of £1,038,018.30 and fees as well as relevant VATs. Marsh claimed that the adjudicator had breached the rules of natural justice by failing to deal with its defences to the loss and expense claims. To correct the errors arising from the breaches, March invited the adjudicator to use the slip rule. The adjudicator declined to utilise the slip rule. March subsequently failed to pay the sum directed.

McKenna J held that Marsh had waived or elected to abandon its rights to challenge the enforcement of the adjudicator’s decision. Applying the dictum from Macob Civil Engineering Ltd v Morrison Construction Ltd [1999] C.L.C. 739, the court outlined that the doctrine of election prevents a party from “approbating and reprobating” or “blowing hot and cold” to an adjudicator’s award. As such, whole of the relevant decision must be accepted or contested. Considering Laker Vent Engineering Ltd v Jacobs E&C Ltd [2014] EWHC 1058 (TCC), 154 Con. L.R. 77, McKenna J held that Marsh’s distinction between the excess of jurisdiction and breach of the rules of natural justice was “conceptually unsound and contrary to the authorities”. Referring to Pilon v Breyer [2010] EWHC 837 (TCC) B.L.R. 452, it was outlined that such challenges where often framed in the alternative. McKenna J outlined that Marsh could have expressly reserved its right to pursue a claim of breach of the rules of natural justice when inviting the adjudicator to make corrections under the slip rule. As Marsh did not reserve such right, it had treated the adjudicator’s decision as valid and waived or elected to abandon its right to challenge enforcement of the decision. Therefore, Dawnus was entitled to summary judgment.

McKenna J also held that the adjudicator had not breached the rules of natural justice. Applying Cantillon Ltd v Urvasco Ltd [2008] EWHC 282 (TCC) B.L.R. 250, it was held that a breach of natural justice had to be “plain”, “significant”, “causative of prejudice” or “material” in order to constitute a bar to enforcement. It was held that the adjudicator had determined the issue being referred to him, being loss and expense, despite misunderstanding the nature of the defendant’s arguments. Further, Dawnus had contractual entitlement to loss and expense.