Cantillon Ltd v Urvasco Ltd

An adjudicator must determine the essential disputed claim, rather than confining the reference to the parties’ pre-referral arguments or evidence. A responding party may advance any arguable defence. The adjudicator may determine the consequences of a successful defence, including the actual period of compensable delay and the resulting quantum.

A breach of natural justice prevents enforcement only where it is material. There is no breach where the relevant issue was raised by the parties, the adjudicator did not pursue an unargued case of his own, and the party had a fair opportunity to provide submissions and evidence. Errors of fact or law do not otherwise prevent enforcement of an adjudicator’s decision.

Cantillon sought to enforce an adjudicator’s decision awarding it £391,565.60 plus VAT under a JCT building contract. The decision concerned loss and expense claims arising from a 16-week extension of time and a separate 13-week extension granted for an in-board piling variation.

Urvasco resisted enforcement only in relation to the 13-week claim. It contended that the adjudicator lacked jurisdiction to award prolongation costs for a later period than the 13 calendar weeks quantified by Cantillon. It also alleged that the adjudicator had denied it a fair opportunity to address the costs incurred during that later period.

The central issues were the scope of the dispute referred to adjudication, whether the adjudicator had decided an unargued case, and whether any defect could be severed from the remainder of the decision.

1. Judgment was entered for Cantillon. The adjudicator’s award was enforceable in full. Urvasco had established neither an excess of jurisdiction nor a material breach of natural justice.

2. The dispute was a disputed claim for loss and expense attributable to the piling variation, not a claim confined irrevocably to the particular calendar weeks used in Cantillon’s initial quantification. A respondent may raise any defence to the claim. The adjudicator may resolve both that defence and its consequences. The court declined to follow the narrower approach in Edmund Nuttall Ltd v RG Carter Ltd [2002] BLR 312.

3. Urvasco’s own as-built-delay defence put the timing of any compensable prolongation in issue. The adjudicator was therefore entitled to find that critical delay occurred later, to reduce its duration for contractor-responsible delay, and to determine the associated quantum. He was deciding the referred dispute, not making a new case for Cantillon.

4. The court applied the principles in Balfour Beatty Construction Company Ltd v The Camden Borough of Lambeth [2002] BLR 288. Natural justice requires a material failure of fairness, such as deciding a decisive unargued point without allowing comment. There was no such failure. The parties had placed cost material for the wider period before the adjudicator, Cantillon expressly raised the possibility of a later period, and Urvasco had time to answer it but chose not to do so. Any factual or legal mistakes in the assessment did not invalidate the decision.

5. Obiter, where an adjudicator determines more than one separable dispute, a jurisdictional or natural-justice defect affecting one will not necessarily prevent enforcement of an untainted and practically severable decision on another. A decision on a single dispute remains unenforceable where a material defect taints that decision.

This was a first-instance enforcement claim. The judgment records earlier adjudications between the parties, culminating in Dr Mastrandrea’s decision of 28 November 2007. The High Court enforced that decision in full.