Home Group Limited v MPS Housing Limited [2023] EWHC 1946 (TCC)
The claimant sought summary enforcement of an adjudication decision which ordered the defendant to pay the claimant £6.5 million. The adjudication followed an earlier one where MPS was held to have repudiated the contract.
Question for determination by the Court
The claimant sought summary enforcement of an adjudication decision which ordered the defendant to pay the claimant £6.5 million. The adjudication followed an earlier one where MPS was held to have repudiated the contract.
By way of background the claimant wrote to the defendant requesting payment of £8.2 million. The defendant had requested further information and supporting documentation on how this sum was calculated. In February 2023, the claimant provided a draft quantum expert report of some 155 pages with 76 appendices, which comprised 202 files in 11 sub-folders, amounting to 338 megabytes of data. Given the volume of data, the defendant requested until May 2023 to provide a formal response. The claimant ignored the request and served the adjudication referral in March 2023.
The adjudicator held that the defendant was liable to the claimant for £6.5 million. The defendant argued that it had not been given adequate time to consider the vast quantities of data and so the decision was unenforceable as there was a breach of natural justice.
Decision
The court rejected the argument that there was a breach of natural justice.
The court quoted Coulson on Construction Contracts (4th Edition) confirming:
"It is often argued that the timetable unreasonably favoured the referring party or did not allow the responding party proper time to respond. However, because complexities are an inherent part of the adjudication procedure, these complaints are generally given short shrift by the courts."
Mr Justice Constable noted the case law demonstrates that arguments based upon time constraints impacting the ability to respond fairly have enjoyed little success. This is largely because complexity of disputes and constraint of time are inherent in adjudication and therefore are not a bar to adjudication enforcement.
Mr Justice Constable also confirmed:
“In cases involving significant amounts of data, an adjudicator is entitled to proceed by way of spot checks and/or sampling. The assessment of how this should be carried out is a matter of substantive determination by the adjudicator and an argument that the adjudicator has erred in his or her approach, absent some particular and material related transgression of natural justice, will not give rise to a valid basis to challenge enforcement. It would, even if correct, merely be an error like any other error which will not ordinarily affect enforcement.”
In addition to the above, the defendant had also put forward a detailed response to the referral notice and was in fact successful on some of the high value items that were in dispute during the adjudication. This was of course contrary to its position that it had not had sufficient time to properly prepare.
Commentary
This case confirms that the inherent challenges faced by the responding party to an adjudication, namely, a large volume of documentation and little time to respond, will not ordinarily be grounds to prevent the enforcement of an adjudicator's decision. Though this is not to say that, in particular circumstances where natural justice cannot be achieved, there may be good grounds to resist enforcement.
The case also serves as a useful reminder to start preparing your position for an anticipated adjudication before the Notice of Adjudication is served, if at all possible, to maximise the time available to respond and give the best prospects of defending the claim successfully.
