UK: Five Practice Points We Have Learnt About Adjudication In The Last Six Months

Last Updated: 4 September 2013
Article by Lisa Kingston

This twenty-sixth issue of Insight looks at five key adjudication decisions that have been handed down by the courts over the past six months that have considered, amongst other issues, (i) running multiple disputes, (ii) resisting enforcement, (iii) resisting payment and (iv) having more than one bite of the cherry.

What can we learn from them in practice?

Running multiple disputes

Can you serve numerous Notices of Adjudication at the same time for determination by the same adjudicator? Willmott Dixon Housing Ltd (formerly Inspace Partnerships Ltd) v Newlon Housing Trust [2013] EWHC 798 (TCC)

In a non-Scheme adjudication, yes.

The decision

In this case, Newlon maintained that referring two adjudications simultaneously was contrary to section 108 of the HGCRA (and also the CIC Rules which applied here), which only allows adjudicators to determine one dispute at any one time.

Newlon's argument was rejected by Mr Justice Ramsey who held that there is nothing under the HGCRA that precludes a party from serving more than one Notice of Adjudication, each relating to a different dispute, and then referring each adjudication to the same adjudicator. This is because section 108(2)(a) of the HGCRA provides parties with the right to adjudicate "at any time".

Practice point

This is only a first instance decision and it is not therefore binding authority, but it seems to suggest that non- Scheme adjudications can be referred to adjudication simultaneously, provided there is nothing preventing the presentation of more than one dispute in any other adjudication rules that might govern the dispute.

Resisting enforcement

Can you resist enforcement on the basis that the adjudicator considered a contract clause the parties did not refer to? ABB Ltd v BAM Nuttall Ltd [2013] EWHC 1983 (TCC)


The decision

In ABB, it was common ground that the adjudicator had referred to a particular clause of the contract in his decision, which had not been raised by the parties, and which he did not refer to the parties prior to issuing his decision.

The parties (and ultimately the courts) must have confidence in the fairness of the adjudicator's decision-making process. It is perfectly legitimate for an adjudicator to raise new points with the parties and invite comment, argument or even evidence, but only when he has done so may he rely on that point in reaching his decision. If the issue is an important one and the adjudicator does not refer it to the parties prior to issuing his decision, then the rules of natural justice risk being breached. In ABB, the claimant successfully argued that the adjudicator's decision should not be enforced as the issue was an important one and there was therefore a material breach of the rules of natural justice.

Practice point

If you receive a decision from an adjudicator that makes reference to a material, actual or potentially important part of the decision that was not mentioned by the parties, and was not referred to the parties by the adjudicator prior to the decision being issued, then you should consider resisting enforcement on the basis that the rules of natural justice have been breached.

Resisting payment

Can you set off or withhold against an adjudicator's decision? Thameside Construction Company Ltd v Stevens and another [2013] EWHC 2071 (TCC)

It all depends on the wording of the adjudicator's decision.

The decision

In Thameside, the adjudicator directed that payment should be made within 14 days and made it clear that there should be no set-off other than sums that had already been set off through his calculations. The matter only reached the courts because the adjudicator formed the view that issues as to liquidated damages (amongst other things) should be "left over" to another day, which caused confusion and prompted the set-off and withholding arguments that arose.

The judge, Mr Justice Akenhead, provided some broad guidelines as to the circumstances under which a right to set off or withhold can be exercised. He confirmed that the starting point is to consider what the adjudicator decided, and that means looking at the adjudication pleadings, and primarily the decision itself, to ascertain the essential components of, or basis of, the decision.

As a general rule, decisions should be honoured and no set-off or withholding will be permitted unless (i) there is a contractual right to set-off which does not offend against the statutory requirement for immediate enforcement of the adjudicator's decision (which would be rare), (ii) the adjudicator decrees that a balance is due as opposed to a balance being payable, or (iii) the adjudicator's decision expressly permits a right of set-off or withholding.

Practice point

If you are considering withholding or setting off sums from an adjudicator's decision in practice, you should pay heed to the guidelines set out by Mr Justice Akenhead in Thameside and bear in mind that more often than not it will be an uphill task.

Having more than one bite of the cherry

Can a decision in one adjudication be placed before an adjudicator in a subsequent adjudication? Arcadis UK Ltd v May and Baker Ltd (t/a Sanofi) [2013] EWHC 87 (TCC)

In certain circumstances, yes.

In the Arcadis case, Mr Justice Akenhead did not hesitate in finding that it was neither improper nor contrary to the rules of natural justice for a decision in one adjudication to be placed before a second adjudicator for consideration in a subsequent adjudication, or for the second adjudicator to have regard to any previous decision which he found to be germane and persuasive. This was on the basis that the courts look at previous decisions all the time.

The decision

On the facts here, Arcadis had succeeded in an earlier adjudication in relation to very similar issues of fact and law that also pertained to the second adjudication, and so Arcadis understandably sought to persuade the second adjudicator to adopt the findings of the first adjudicator on the basis that the same principles applied.

This seems relatively straightforward, but a note of caution if you are considering adopting Arcadis' approach in practice. The important point to note is that the second adjudicator confirmed he had decided the issues on their own merits, and not because he felt bound by the decision of the first adjudicator in relation to the factual and legal issues that the first adjudicator considered to be pertinent. It would not therefore automatically follow that any earlier decision would necessarily bind any subsequent adjudicators; indeed, there is nothing requiring adjudicators to follow earlier decisions.

It is up to individual adjudicators to decide the extent to which earlier decisions might be relevant or helpful, and any second adjudicator would effectively have to wholeheartedly agree with the approach taken by the earlier adjudicator if he were to adopt his decision.

Practice point

The crux of the matter is that the closer any earlier decision on the facts and issues, the easier it will be for any subsequent adjudicator to adopt the earlier adjudicator's decision. You should only rely on an earlier decision if the facts and issues are aligned. It is also worth noting that if an issue has already been adjudicated upon, it cannot be adjudicated upon a second time. You should therefore establish and define the scope of the adjudication, and the nature and extent of the adjudicator's decision, before making any final decision as to whether to rely on an earlier decision.

Can you litigate following an adjudication? Aspect Contracts (Asbestos) Ltd v Higgins Construction plc [2013] EWHC 1322 (TCC)

Yes, provided you issue proceedings within the six-year limitation period.

The decision

The adjudication in Aspect was a Scheme adjudication. Aspect pleaded an implied term that where money was paid over following a Scheme adjudication, the paying party acquired a right to have the dispute finally determined by legal proceedings, because the limitation period began afresh from the date on which payment was made.

Mr Justice Akenhead, however, did not agree with Aspect. He considered it was not reasonable, equitable or necessary to imply the terms that Aspect sought to make into the contract between Aspect and Higgins for the purposes of business efficacy, and the term Aspect sought to be implied did not go without saying. There was nothing within the Scheme that gave the losing party a right to sue for sums paid from the date of payment, in compliance with an adjudicator's decision. This was not what Parliament intended and there was no policy reason why this would be necessary.

Practice point

If you are dissatisfied with an adjudicator's decision, you should examine your options at an early stage and act quickly, ideally as soon as the decision has been issued. If you do so, not only will you not fall foul of limitation, but you will also be at a tactical advantage by issuing proceedings for a declaration.


There is nothing too surprising about any of the above decisions. They provide further examples of the courts' robust stance on challenges to the enforcement of adjudicators' decisions, and support the role of adjudication as an interim binding and expeditious dispute resolution procedure, the essence of which is to provide cash flow.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Lisa Kingston
In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.