Premier Modular Limited v Maidstone and Tunbridge Wells NHS Trust

In adjudication enforcement proceedings, a court may refuse enforcement where the adjudicator decides a material issue on a factual or legal basis that neither party advanced and that was not fairly canvassed. An adjudicator may reach a conclusion for which neither party contended, but only where the parties had a fair opportunity to address the relevant material and issues. A broad description of the dispute or reference to contractual provisions does not by itself give adequate notice of an entirely new case. The breach must be material, concerning a decisive issue or one of considerable potential importance. A mistaken or incomplete treatment of a defence is not, without more, a breach of natural justice. Challenges on jurisdiction and natural justice remain distinct.

The claimant sought summary judgment to enforce a re-corrected adjudication decision awarding it £1,655,385.49 under an NEC4 design-and-construction contract. The defendant resisted enforcement on three natural justice grounds: the adjudicator had founded a compensation event on clause 60.1(3), although the parties had advanced other contractual bases; had treated an unaccepted revised programme as the Accepted Programme; and had failed to address a notification time-bar defence under clause 61.3. It also alleged, more faintly, that the adjudicator had exceeded his jurisdiction. The central issues were whether the adjudicator’s approach was materially unfair and whether the decision should be enforced summarily.

1. Application dismissed. The claimant was not entitled to summary judgment enforcing the adjudication decision because the defendant had a real prospect of establishing a material breach of natural justice.
2. The relevant distinction was between failing to consider a defence and deciding the dispute on a basis which the responding party had no adequate opportunity to address. Under Cantillon Ltd v Urvasco Ltd [2008] B.L.R. 250, a breach must be material. It must concern a decisive issue or one of considerable potential importance, rather than a peripheral matter. The principle was further illustrated by Roe Brickwork Limited v Wates Construction Limited [2013] EWHC 3417 (TCC): an adjudicator may decide on a basis for which neither party contended where the relevant material and issues have been fairly canvassed, but must invite submissions where the proposed basis depends on material not put forward.
3. The adjudicator decided that the water-main delay was a compensation event under clause 60.1(3), relying on Contract Programme Rev3 dated 30 October 2023 as an Accepted Programme. Neither party had alleged that programme was accepted. Both had proceeded on the basis that the contractual Appendix 3 programme was the only Accepted Programme, and the adjudicator’s clarification did not fairly raise the clause 60.1(3) case. The decision therefore amounted to a material departure from the parties’ cases and an invented basis for the claimant’s claim.
4. The jurisdiction challenge failed. The matters decided fell within the scope of the reference, but that did not answer the separate natural justice complaint.
5. The adjudicator had addressed the notification issue, albeit possibly by misunderstanding or confusing the contractual regimes for compensation-event notifications and early warnings. That was an error in the decision, not a natural justice breach. Enforcement proceedings were not an occasion to analyse which parts of the decision were correct.
6. The court applied the guidance in Carillion Construction Limited v Devonport Royal Dockyard Limited [2006] BLR 15 that interference should occur only in rare cases of obvious unfairness. This was such a case because the adjudicator did not merely overlook or misunderstand a point under time pressure, but created a central case which the claimant had not advanced and the defendant had no proper opportunity to meet.