Citation: [2024] EWHC 1929 (TCC)
The Defendant could not resist enforcement of the adjudicator’s decision on the basis of a breach of natural justice or lack of jurisdiction. In reaching his decision the adjudicator had relied solely on material put to him by the parties, and it was not a breach of natural justice to reach a decision using that material, even if neither party had contended for the specific decision he rendered.
Background
The Claimant subcontractor had issued an interim payment application to which the Defendant contractor had responded with a pay less notice. While the Claimant accepted this notice, a dispute persisted, and the Claimant referred the matter to adjudication.
The adjudicator found that the notice was not valid and made an award in the Claimant’s favour which exceeded the sum actually claimed. The Claimant sought to enforce this award and issued an application for summary judgment on the grounds that the Defendant had no defence to enforcement.
The Defendant contended that enforcement should be denied on the basis that the adjudicator awarded a sum for which neither party had contended, thereby exceeding his jurisdiction, or acting in breach of the rules of natural justice.
Decision (Mr Jonathan Acton Davis KC)
Application for summary judgment granted.
Natural Justice
The adjudicator had not acted in breach of natural justice by ordering an award which exceeded the amount claimed by the Claimant. The material relied upon by the adjudicator to justify this sum had been received in response to a question answered by the Claimant. He had not ‘went off on a frolic’ of his own to determine the appropriate figure. Further, both parties were aware of the relevant material before the adjudicator, and reaching a decision on the basis of this material, even if not contended for by either party, was not a breach of natural justice.
Jurisdiction
An adjudicator has licence to grant whatever relief is necessary, just and equitable to resolve the dispute before them. In selecting a value for this award, the adjudicator had not conducted his own valuations, rather, he had simply corrected the calculations he received using the materials put to him by the parties. The adjudicator did not therefore exceed his jurisdiction.
Representation
Thomas Lazur (Keating Chambers) for the Claimant, instructed by Fladgate LLP.
Andrew Singer KC (King’s Chambers) for the Defendant, instructed by Howard Kennedy LLP.
The full judgment can be found here.
