Construction Muzzy Limited v Davis Construction (South East) Limited

On summary enforcement of adjudication decisions, a defence must have a realistic prospect of success and carry some degree of conviction; a merely arguable point is insufficient if it remains fanciful.

An unsolicited submission does not, by itself, breach natural justice where it responds to materially expanded arguments and its consideration is peripheral and non-decisive. An adjudicator may reach a similar result in a later adjudication where the responding party declines to participate, provided the adjudicator reviews the evidence and reaches findings on the material before the court.

The prohibition on substantially identical successive adjudications is fact-sensitive. It is directed to re-litigation within a discrete contractual factual matrix and does not ordinarily prevent a party pursuing a similar claim arising under a separate contract.

The claimant sought summary judgment to enforce two adjudication decisions concerning payment applications under separate construction sub-contracts for groundworks and drainage works. The defendant resisted enforcement on the grounds of breach of natural justice in the first adjudication, lack of jurisdiction in the second because the disputes were substantially the same, and predetermination in the second adjudication.

The court considered the summary judgment threshold under Civil Procedure Rules 1998, the principles governing material breaches of natural justice, and the limits on successive adjudications under the statutory adjudication scheme.

1. The claimant was entitled to summary judgment enforcing both adjudication decisions. Under CPR r. 24.3, the defendant had to show a defence with a realistic prospect of success, carrying some degree of conviction, or another compelling reason for trial. The issues advanced were no more than fanciful.

2. In the groundworks adjudication, the claimant’s unsolicited surrejoinder responded to substantially expanded implied-term arguments in the rejoinder. Its admission was not itself procedurally unfair. In any event, the adjudicator’s reference to it was a minor and non-decisive aspect of the reasoning. The decision’s direction was independently established by the remaining reasoning, so the alleged breach was neither sufficiently material nor decisive.

3. In deciding whether two adjudication disputes are substantially the same, the court must apply robust common sense and fairness to a fact-sensitive question. The relevant inquiry includes whether the disputes arise within the same discrete contractual factual matrix and whether the later adjudication risks impinging on factual findings in the earlier one. Similar causes of action and substantially similar referral notices do not necessarily create an obligation to resign where the claims arise under separate sub-contracts.

4. The defendant’s refusal to participate in the drainage adjudication did not establish predetermination. The adjudicator reviewed the claimant’s evidence and made findings on it. The possibility of a similar result, in circumstances where the defendant had supplied no contrary evidence or factual distinction, did not show that the adjudicator failed to approach the matter with fresh eyes or an open mind.

Summary judgment was therefore granted on both adjudications.

The judgment records that, by Order dated 1 May 2025, Waksman J transferred the Part 7 proceedings to the Liverpool TCC and certified them suitable for disposal by a District Judge. No earlier merits judgment is stated.