Adjudication—what not to do when resisting enforcement
Adjudication—what not to do when resisting enforcement

The following Construction guidance note provides comprehensive and up to date legal information covering:

  • Adjudication—what not to do when resisting enforcement
  • Introduction
  • Beware the hopeless defence
  • No defence that final proceedings have been commenced
  • No defence that adjudicator made a mistake
  • No defence that the decision could be accounted for in future certification and payment procedures
  • Is it ever possible to challenge an adjudicator’s findings?
  • Jurisdictional challenges

Produced in association with 4 Pump Court

Introduction

A party which has taken steps to affirm the validity of an adjudicator's decision cannot then challenge it at subsequent enforcement proceedings. For example, in PT Building Services v ROK Build, a sub-contractor obtained a favourable award in a first adjudication but, due to concerns about enforcement raised by the adjudicator, later commenced a second adjudication. The contractor resisted this second adjudication on the basis that there had already been an adjudication in the same dispute, and the second adjudicator resigned as a result. When the contractor subsequently attempted to resist enforcement of the first decision, Ramsey J held that it was unable to do so since it had already elected to treat the first adjudication as valid during the second adjudication. For a detailed analysis of this case, see News Analysis: A party which has taken steps which affirm the validity of an adjudicator's award cannot then challenge it at enforcement (23 February 2009).

It is now well-established (Carillion Construction v Devonport Royal Dockyard) that an application for the enforcement of an adjudicator’s decision may only be resisted on one of two grounds:

  1. the adjudicator acted in excess of his jurisdiction, or

  2. the conduct of the adjudication amounted to a serious breach of the principles of natural justice

Accordingly, as Chadwick LJ