Ground Developments Ltd v FCC Construccion SA & Ors

On an application to enforce an adjudicator’s decision, the court identifies the dispute by analysing the notice of adjudication, referral and decision together. A valuation exercise may form part of a payment dispute founded on the absence of payment or pay-less notices. Enforcement should be refused for excess of jurisdiction or breach of natural justice only in the plainest cases. Errors of fact or law, including contractual findings, do not ordinarily prevent enforcement. The court need not finally determine the underlying contractual dispute before enforcing a temporarily binding adjudication decision, although it must consider whether the adjudicator was validly appointed, acted within jurisdiction and complied with natural justice.

Ground Developments Ltd applied under CPR Part 24 for summary judgment enforcing an adjudicator’s decision awarding approximately £207,403 plus VAT against an unincorporated joint venture comprising FCC Construccion SA, Samsung C&T ECUK Limited and Kier Infrastructure and Overseas Limited.

The parties had performed deep soil mixing works while negotiations over an NEC3 sub-contract remained unresolved. The adjudicator accepted that the contractual basis was a September 2015 communication incorporating GDL’s earlier terms, and awarded sums relating to three payment applications. The joint venture resisted enforcement on jurisdictional, natural justice and contractual grounds, including that the adjudicator had decided a valuation dispute or had been appointed under inapplicable NEC3 provisions.

1. Summary judgment granted. GDL was entitled to enforce the adjudicator’s decision for £207,403.27 plus VAT. Interest and costs were reserved for further argument.
2. The dispute was not confined to the absence of pay-less notices. The notice, referral and decision showed that the referred dispute concerned the failure to pay three applications for payment, with the absence of pay-less notices forming one limb of GDL’s case. The adjudicator had decided that dispute, not a separate valuation dispute. The approach in MJ Harding Contractors v Paice and Springall [2015] EWCA Civ 1231 and Brown v Complete Building Solutions Ltd [2016] EWCA Civ 1 supported analysing the terms, scope and extent of both the reference and the decision.
3. The decision was enforceable despite alleged errors of fact or law. The challenge to the adjudicator’s finding concerning the September 2015 contractual terms was in substance an attack on the merits, not a jurisdictional or natural justice challenge. Bouygues (UK) Ltd v Dahl-Jensen (UK) Ltd [2000] EWCA Civ 507 confirmed that adjudicators’ decisions remain enforceable despite mistakes.
4. The court applied the approach in Carillion Construction Ltd v Devonport Royal Dockyard Ltd [2005] EWCA Civ 1358: enforcement should be refused only where it is plain that the wrong question was decided or the adjudicator acted obviously unfairly. The joint venture had opportunities to address valuation, contract formation and procedure, and the adjudicator had made clear that the Scheme applied.
5. The appointment was valid. GDL had applied under the Scheme because the September contractual terms contained no adjudication provisions. References to NEC3 and TeCSA rules were expressly alternative and did not mean that the appointment was made under unagreed NEC3 provisions. Tw inc ec Ltd v Volkerfitzpatrick Ltd [2014] EWHC 10 (TCC) and Pegram Shopfitters Ltd v Tally Weijl [2004] 1 WLR 2082 were distinguishable on their facts.
6. The contractual issue was not finally determined. It was sufficient for enforcement that the adjudicator had been validly appointed, had acted within jurisdiction and had complied with natural justice. In any event, the joint venture’s alternative contractual cases had no real prospect of success on the material before the court. The enforcement process was temporarily binding and did not require a prior final trial.

First instance decision. No appellate history was stated in the judgment.