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The Claimant in this case was Construction Muzzy Limited, which was a sub-contractor to the Defendant, Davis Construction (South East) Limited. The value of the Claimant’s claim was £261,191.44 plus interest. The basis of these enforcement proceedings were two adjudication decisions dated 20 January 2025 and 8 March 2025, with which the Defendant failed to comply. This claim was heard at the TCC in Liverpool on 7 August 2025.
The parties had entered into two separate subcontracts under which the Claimant agreed to carry out “groundworks” and “drainage works” to a site referred to as Conder in Epping, Essex, respectively dated 3 February 2023 and 7 June 2023. Both subcontracts were made on the same contractual terms and allowed for adjudication. After becoming dissatisfied with the Claimant’s work, the defendant asked the Claimant to leave site in October 2023. In the first adjudication, concerning the groundworks contract, the Claimant asked the adjudicator to decide that it was owed that it was owed £98,533.44 (plus VAT) under a payment application dated 28 July 2024, while in the second adjudication, concerning the drainage contract, the Claimant asked the adjudicator to decide that it was owed a further £102,666.45 (plus VAT), pursuant to a payment application dated 31 July 2024. The adjudicator found in favour of the Claimant in both adjudications, and the Claimant made an application for these to be enforced after the Defendant failed to comply with the adjudicator’s decisions.
The Defendant opposed the application. Firstly, it argued that there had been a breach of natural justice, as it claimed that the adjudicator had placed significant reliance on an unsolicited surrejoinder in the first adjudication. Specifically, the Claimant’s legal representative produced a response to the Defendant’s Rejoinder by way of an email rejecting the Defendant’s arguments around the implication of terms into the contract. The adjudicator then reproduced an extract of this email in his decision and stated that he agreed with the argument made. The Claimant argued that the email response was not an attempt to gain an unfair advantage, but a response to a new or expanded position set out in the Rejoinder, as the Defendant included an argument that there should be five implied terms rather than one, and in any event the adjudicator had considered and rejected all of the Defendant’s submissions elsewhere.
The Defendant also argued that the adjudicator, who had been appointed to both adjudications, had lacked jurisdiction in the second adjudication because the dispute was substantially the same as the dispute in the first adjudication, on the basis that the causes of action at issue were the same. The Claimant argued that the disputes in the two adjudications were clearly separate, as they are claims for notified sums under separate sub-contracts, giving rise to separate claims and different entitlements.
Finally, the Defendant argued that there was a breach of natural justice by the adjudicator in the second adjudication as his failure to resign led to an unacceptable level of predetermination in the Adjudicator’s approach, making reference to the adjudicator’s acknowledgement of the similarity in facts between the adjudications, stating “If there were any factual differences that would in some way differentiate this adjudication, then Davis’ refusal to participate means that such facts have not been put to me. That was Davis’ prerogative”. This, the Defendant argued, was an acknowledgment that he was not undertaking a fair and balanced assessment of the facts and evidence and not approaching matters with fresh eyes and an open mind. Meanwhile the Claimant argued that as the Defendant had refused to participate in the adjudication, the adjudicator necessarily only had the Claimant’s submissions, and this did not suggest that the adjudicator did not approach matters with fresh eyes.
The judge found in favour of the Claimant and allowed the application. As regards the adjudicator’s alleged reliance on an unsolicited surrejoinder in the first adjudication, the judge agreed with the Claimant that this did not have the purpose of gaining an unfair advantage, but to respond succinctly to a significantly expanded legal arguments in the rejoinder. In any event, the adjudicator’s approach to the surrejoinder did not come close to being more than peripheral to or sufficiently decisive or important to his decision. The judge agreed with the Claimant that the adjudicator had jurisdiction in the second adjudication, and that there had been no breach of natural justice.
An interesting point to consider from this case arises out of the judge’s treatment of the surrejoinder. Even though the Claimant did not have permission to serve a surrejoinder, in the circumstances the judge was willing to accept it doing so as justifiable, in response to new arguments raised in the Rejoinder. This illustrates the point that on occasion it may be justified for a party to make such a response to protect its interests (albeit that this will usually only occur in exceptional circumstances where a party has introduced new arguments or amended its arguments at a late stage in the adjudication.