J&B Hopkins Limited (“J&B”), the Claimant in the proceedings, sought enforcement of an adjudicator’s decision against the Defendant, A&V Building Solution Limited (“A&V”) for the payment of £82,956.88 which it was decided had been overpaid to A&V on a true valuation of the final account (“Overpayment”). The Defendant responded by arguing that the Claimant failed to comply with the TCC Pre-Action Protocol, and that the adjudicator acted without jurisdiction and in breach of natural justice. 

The parties entered into a bespoke subcontract for plumbing installation works by A&V at a university campus in Brighton for the sum of £368,000 (the “Subcontract”). The works did not run smoothly, causing disputes between the parties. A&V subsequently launched an adjudication against J&B alleging that it was unreasonably withholding payment of circa £455,000 in breach of the Subcontract. In its referral, A&V alleged seven breaches of contract by J&B, varying from failure to make payments, to lack of instructions. Much to A&V’s surprise, the adjudicator found in favour of J&B and awarded the Overpayment. A&V was also held liable for 100% of the adjudicator’s fees. A&V refused to comply with the decision, prompting J&B to commence enforcement proceedings. 

Just before the enforcement hearing, the Defendant issued a late application seeking a stay of the proceedings, and judgment in its favour, on the basis that the Claimant had failed to comply with the TCC Pre-Action Protocol by responding to the Defendant’s pre-action letter outside of the defined timeframe. The Defendant also argued that the adjudicator had erred in his decision to award the Overpayment by failing to administer natural justice and acting with bias, in addition to other criticisms regarding how the adjudicator dealt with issues of fact, and his lack of reasoning on a key issue. It was further submitted that a conflict between the Overpayment decision and an earlier decision negated the adjudicator’s jurisdiction to decide the dispute.  

Finding in favour of the Claimant, the Judge ruled that the adjudicator had not erred in his duties and that there had been no breach of natural justice. Further, the adjudicator did have jurisdiction on the basis that the disputes were not the same or substantially the same, and so he was not bound by the earlier decision. The Judge concluded that on the facts, the Defendant had failed to establish a material breach of natural justice because the decision had been reached diligently and thoughtfully within a limited timeframe. Looking back in hindsight and believing that things should or might have been done differently falls far short of the threshold to nullify a decision. Critically, the Judge confirmed that the TCC Pre-Action Protocol does not apply to adjudication enforcement proceedings. The court therefore enforced the adjudicator’s decision and awarded the Claimant £96,918.88, being the sum of the Overpayment plus the adjudicator’s fees. 

This judgment provides helpful guidance on the application of the rules on natural justice and jurisdiction in enforcement proceedings. There must be clear and significant evidence of a breach or departure from those principles by the adjudicator. Parties should be aware that the courts take a sympathetic approach to the workload and time pressures often faced by adjudicators.