Essential Living (Greenwich) Limited v Conneely Facades Limited

Adjudication decisions should be enforced summarily unless a serious breach of natural justice is established. The alleged breach must have made a material difference to the outcome. Complaints of this kind should be approached with appropriate scepticism, recognising the speed and provisional nature of adjudication.

An adjudicator’s adverse procedural comment does not establish apparent bias or predetermination where the parties remain able to present their substantive case and the adjudicator remains open to reconsideration. Payment of the adjudicator’s fees without reservation may amount to a waiver of a known natural justice objection.

Essential sought summary judgment to enforce an adjudication decision concerning alleged defects in rainscreen cladding and associated works. Conneely resisted enforcement, alleging that the adjudicator’s refusal of an early disclosure application showed apparent bias and predetermination.

The adjudicator had described the suggested double recovery as fanciful, but later permitted more focused disclosure and invited Conneely to address causation and quantum in its evidence. Conneely subsequently abandoned the double recovery argument and paid the adjudicator’s fees without reserving its position. The issues were whether there had been a serious breach of natural justice, whether it had materially affected the result, and whether the objection had been waived.

1. Summary judgment granted. Essential was entitled to enforce the adjudicator’s decision.
2. The apparent-bias test asks whether the fair-minded and informed observer would conclude that there was a real possibility that the decision-maker was biased, applying Helow v Secretary of State for the Home Department [2008] 1 WLR 2416 and Resolution Chemicals v Lundbeck [2014] 1 WLR 1943. In adjudication, that test must be applied in the context of a rough and temporary process conducted at great speed.
3. Adjudication decisions should be enforced summarily unless there is a serious breach of natural justice. The breach must have made a material difference to the outcome, and courts should approach such complaints with a degree of scepticism. The adjudicator’s onerous duties arise from the speed and informality of adjudication: Carillion Construction Ltd v Devonport Royal Dockyard Ltd [2006] BLR 15, Home Group Ltd v MPS Housing Ltd [2023] BLR 474 and Lanes Group Plc v Galliford Try Infrastructure Ltd [2012] BLR 121.
4. The adjudicator’s disclosure ruling was not a breach of natural justice. The description of the double recovery argument as fanciful concerned the disclosure application and quantum, not liability or causation. The adjudicator left the door open to further evidence, later ordered limited disclosure, and did not reach a concluded view on any issue ultimately decided. The circumstances therefore did not amount to predetermination, unlike the possible situation identified in Miller and Another v Health Service Commissioner for England [2018] PTSR 801 and H1 and Another v W and Others [2024] EWHC 382 (Comm).
5. Even if a breach had occurred, it would not have made a material difference. Conneely abandoned the double recovery point after seeing the disclosed material.
6. Conneely had also waived the objection. It knew of the alleged natural justice breach, had asked the adjudicator to resign, and nevertheless paid his fees without reservation. Under Platform Interior Solutions Ltd v ISG Construction Ltd [2020] EWHC 945 (TCC), payment may amount to an election to treat the decision as valid. Conneely could have preserved its objection expressly while paying the fees.
7. Indemnity costs were appropriate because the unmeritorious objections delayed payment and required additional court time, and the attack on the experienced adjudicator’s conduct was wholly inappropriate.