No enforcement where decision is based on matter not addressed by the parties – Premier Modular Ltd v Maidstone And Tunbridge Wells NHS Trust [2026] EWHC 1404 (TCC)

June 2026

James Vernon and Jaynish Patel

The claimant (“PML”) sought to enforce a (re-corrected) adjudication decision issued on 26 February 2026 made by the Adjudicator, by which PML was awarded £1,655,385.49. The Adjudicator had determined that a compensation event (“CE”) had arisen under a construction contract on a basis which the defendant (Maidstone And Tunbridge Wells NHS Trust – “the Trust”) contended had not been argued before him and which he had not put to the parties for comment.

Summary judgment was not granted on the basis that the Trust has a real prospect of succeeding on its contention that the decision was arrived at in breach of the rules of natural justice.

Key takeaways

This is a rare example of a Court not enforcing an Adjudicator’s award, but based on the facts and the arguments run it is a welcome addition to adjudication case law. It gives all parties comfort that the ambit of an adjudication is confined to the question posed and is only broadened from the parties’ submissions by specific questions that both parties are then given the opportunity to address.

It also stresses the importance of accuracy and clarity in framing the dispute as referred. In the context of claims under the NEC forms of contract, a broad submission of entitlement to a CE under clause 60.1 without identifying all applicable potential events under the sub-paragraphs in clause 60.1 is unlikely to be successful. In circumstances where the applicable potential events are not set out, or indeed where they are but confined to distinct issues, parties cannot expect an Adjudicator to broaden to other events without inviting submissions on the same.

Although not referred to in this case, where an Adjudicator asks questions that invite submissions on new topics or angles related to the dispute referred, consideration should be given as to whether the time frame for a reply directed by the Adjudicator is suitable and allows for proper consideration of the issue without impacting on a right to natural justice.

Background

The parties entered into a contract for the design and construction of a new barn theatre dated 3 August 2023 and based on the NEC4 Option A. The barn theatre is a stand-alone building in the Maidstone Hospital with a medical care and surgery facilities and plant. The tendered total of the Prices was £19,793,700.41 (“the Contract”).

The original completion date for the work was 31 January 2024, with delay damages at £15,712 per week. The starting date was 23 February 2023, and the access date was 14 July 2023.

A problem arose in late 2023 that was central to the adjudication. PML stated that it required a permanent mains water supply to be made available for the testing and commissioning of elements of its work and that it needed to be provided by the Trust not later than 30 October 2023. PML argued that the Trust failed to make the water supply available until 20 February 2024, which caused them delay. The Trust’s position was that it was responsible for the mains water supply, but there was no requirement for it to be made available by any particular date.

A dispute arose as to whether PML was entitled to a CE under clause 60.1 of the contract, and this was then referred to adjudication. In the Referral PML identified the specific CEs that entitled them to an award in their favour: CE60.1(1) (instruction changing the Scope); 60.1(14) (a client liability event); and/or 60.1(18) (a breach of contract by the Trust).

The Defendant’s counter-arguments were that there was no entitlement to a CE under either of the three specific clauses and in the alternative, PML was time barred in respect of claiming CEs under 60.1(14) and (18) as they had not been notified in accordance with clause 61.3.

There was also a further area of contention during the adjudication as to whether the delay effect should be assessed against the Accepted Programme or a later revision of the programme. The Adjudicator raised queries of the parties as to revisions to the Accepted Programme and Early Warnings, referencing but not inviting comment on CE60.1(3), a failure by the Trust to provide something by the date shown in the Accepted Programme.

The parties answered the queries, including that the Accepted Programme had not been updated, but did not address CE60.1(3).

In his decision, the Adjudicator found that the Accepted programme had been updated, that PML was entitled to a CE under CE60.1(3) and that there was no time bar under clause 61.3. The result was an award in PML’s favour of £1,655,385.49 (plus other relief).

As the Defendant did not pay the award, summary judgment was sought by PML.

Basis of the Trust’s Defence

The Trust submitted that the Adjudicator had breached their right to natural justice. The Court considered two main forms of such challenges:

An allegation that the Adjudicator failed to consider a defence;
A complaint that the Adjudicator decided the dispute upon a basis which the responding party did not have an adequate opportunity to deal with.

The Court considered this matter to fall within the 2^nd form above, citing Cantillon Ltd v Urvasco Ltd¹. The judgment highlighted that a breach of natural justice would only occur if an adjudicator goes off on a frolic of their own, deciding a case upon a factual or legal basis which has not been put forward by either side, without giving the parties an opportunity to comment where relevant or put in further evidence.

Grounds relied upon

The Trust submitted that the central findings in the Decision were reached in breach of natural justice. The three grounds as set out in paragraph 2 of the judgment relied upon were:

“The Adjudicator’s central finding that there had been a CE was made on a contractual basis that had not been raised by the parties and on which neither party had made submissions. The Trust says that this was “an unforeseen and unforeseeable aspect of the Decision that goes to its heart.”
“The Adjudicator failed to address one of the Trust’s defences to the CE claim, namely that PML had failed to comply with a condition precedent and as such was not entitled to a CE.”
“The Adjudicator made a finding that the Accepted Programme had been updated. This was not part of the Adjudication and, moreover, was entirely contrary to the clear position of both parties in the Adjudication that the Accepted programme had not been updated.”

Grounds 1 and 3

In consideration of ground 1, based on PML’s arguments the following was determined:

The dispute whether a CE arose due to the late provision of the permanent water supply was framed in wide terms and this was not tied to any CE under clause 60.1 of the Contract: The Court concluded this was not related to the natural justice complaint.
PML argued that the Adjudicator was entitled to rely on all the CEs put before him under clause 60.1: The Court agreed with the Trust, stating that if the Adjudicator thought the other grounds were potentially relevant, the parties should have been invited to address this.
Both parties had a reasonable opportunity to consider and address the relevance of clause 60.1(3): The Court considered that the request for clarification did not ask the parties to consider clause 60.1(3) and so, both parties agreed that this was not an Accepted Programme.
The Adjudicator was not obliged to invite submissions on every potential argument based on the materials put forward by the parties before reaching his conclusion: The Court stated that if the Adjudicator is to depart from the submissions of both parties, he must ensure that the issues have been fairly canvassed which did not happen here.

In consideration of ground 3:

The Adjudicator was within his jurisdiction to decide what programmes were to be used for assessing delay and what the appropriate baseline for assessment was e.g. by treating this as an Accepted Programme or not: The Court determined this point went to jurisdiction, and not natural justice.
The parties were in dispute as to whether the Adjudicator should assess the delays based on the revised contract, where the Trust contended this should be based on the original contract: The Court again concluded this point principally went to jurisdiction.
Interpreting clause 31² could produce a wide variety of answers and the wider question of what contract programme the Adjudicator should rely on to assess delay. Further, the Adjudicator was entitled to consider, rely on and interpret all the provisions of the Contract and all the materials which were put before him: The Court repeated its point that the issues must have been fairly canvassed which they were not.

Ground 2

This was given brief consideration by the Court who concluded that the Adjudicator may have misunderstood the Trust’s case or confused the contractual regime for Early Warnings with the provisions of clause 61.3. Nevertheless, this was not a breach of the rules of natural justice and it is not for the Court in enforcement proceedings to pick over a decision and consider which parts are correct and more doubtful.

Concluding thoughts

The Judge dismissed the application concluding this has been a case of obvious unfairness. The Court emphasised that it will rarely interfere with the decision of an adjudicator, unless it is clear that the manner in which they have gone about their task is obviously unfair. In this matter, the Trust had a real prospect of succeeding on its contention that the Decision was arrived at in breach of the rules of natural justice.

Beale & Co has experience in acting in adjudications and jurisdictional challenges, including relating to natural justice issues. Should you require legal advice or support related to adjudication or the issues raised by the decision, please contact James Vernon.

¹Cantillon Ltd v Urvasco Ltd [2008] B.L.R. 250

²Clause 31 set out the procedures for accepting an Accepted Programme.

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