TCC Refuses To Enforce Adjudicator’s Decision For Breach Of Natural Justice

In Premier Modular Ltd v Maidstone and Tunbridge Wells NHS Trust [2026], the Technology and Construction Court (TCC) refused to enforce an adjudication decision worth £1.65 million, holding that the responding party had a real prospect of establishing that the decision was reached in breach of the rules of natural justice.

The judgment is a useful reminder that, while enforcement is refused only in rare cases, an adjudicator who decides the central issue on a basis that neither party advanced — and without inviting comment — risks having the decision struck down.

How the dispute arose

• In 2023, Premier Modular Limited (PML) and Maidstone and Tunbridge Wells NHS Trust (the Trust) entered into a contract for the construction of a new barn theatre pursuant to an amended NEC Option 4 contract.
• A dispute arose concerning the availability of a permanent mains water supply. PML referred the dispute to adjudication, asserting that the Trust had failed to make a permanent mains water supply available in time, resulting in a compensation event under clause 60.1 of the contract.
• The Trust accepted that it was responsible for the mains water supply, but argued that there was no requirement for this to be made available by a particular date, and therefore no compensation event. The Trust further submitted that even if there was a compensation event, PML had not notified the Trust and had thereby failed to comply with a condition precedent, such that its claim was time barred.
• Critically, both parties proceeded on the common footing that the only "Accepted Programme" was the original programme at Appendix 3 to the Contract, and that PML's entitlement (if any) arose under clauses 60.1(1), 60.1(14) and/or 60.1(18).

The adjudicator's decision

Prior to reaching his decision, the adjudicator put some questions to the parties for clarification. In particular, he:

• Commented that clause 60.1(3) provided for a compensation event where 'the Client does not provide something which it is to provide by the date shown on the Accepted Programme'. Importantly, as noted above, neither party addressed clause 60.1(3) in their submissions, and he did not invite them to make any further submissions on it.
• Asked the parties whether a revised programme, issued later in 2023, had become an Accepted Programme under the contract.

Both parties responded that the Accepted Programme was never updated and contained no obligation to provide the mains water supply by any particular date.

Despite this, the adjudicator decided the case on an entirely different footing. He awarded PML the sum of £1.65 million on the basis that:

1. A later programme (Contract Programme Rev3 dated 30 October 2023) had become an Accepted Programme by default — notwithstanding that the clause 31 acceptance procedures had not been followed — and that this programme fixed the date by which the mains water was required.
2. PML was therefore entitled to a compensation event under clause 60.1(3), a provision on which neither party had built its case.

The adjudicator considered the clause 60.1(3) analysis to be "that simple", even though it had not occurred to either party.

The enforcement proceedings

The Trust resisted enforcement on the grounds that the adjudication decision was contrary to natural justice. PML subsequently sought to summarily enforce the judgment. 

In particular, the Trust advanced three grounds for resisting enforcement:

Ground 1: The Adjudicator's central finding that there was a compensation event pursuant to 60.1(3) had been made in the absence of any submission by either party.

Ground 2: The Adjudicator failed to address one of the Trust's defences to the original claim, namely that PML had failed to notify the Trust of a compensation event according to the condition precedent.

Ground 3: The Adjudicator made a finding that the Accepted Programme had been updated – this was not part of the adjudication and was contrary to the clear position of both parties in the Adjudication.

The law relating to natural justice challenges – what did the TCC decide?

The TCC applied well-established principles which confirm that a breach of natural justice will occur where an adjudicator "goes off on a frolic of his own" by deciding on a factual or legal basis not argued by either side, without giving the parties an opportunity to comment.

On Grounds 1 and 3, the Court concluded that this was a rare case of obvious unfairness. In particular, the adjudicator had decided the central issue — whether the water main was supplied on time so as to give rise to a compensation event — on a basis that:

1. was not argued by either party;
2. was directly contrary to both parties' position that the revised programme was not an Accepted Programme, and that the only Accepted Programme was the version at Appendix 3 of the Contract; and
3. was never put to the parties by the adjudicator.

That, the judge held, looked "very much like an adjudicator going off on a frolic of his own".

Whilst an adjudicator is not obliged to accept the submissions of one party over another, departing from the submissions of both requires adequate canvassing of the issues, which did not happen here.

Ground 2, however, was dismissed: the adjudicator had addressed condition-precedent/time-bar defence. Even if he had misunderstood the Trust's case or the contractual regime, that was not a breach of natural justice; it is not for the enforcement court to pick over which parts of a decision are correct.

What are the key lessons for parties in adjudication?

The judge in this case was careful to locate the case within the narrow band of exceptions: this was one of those "rare cases where there has been obvious unfairness". 

Significantly, he distinguished cases of oversight under time pressure from the present case, in which the adjudicator "did not neglect a matter under pressure of time" but rather "sought to create a case" for PML which PML had not made, and which the Trust had no real opportunity to challenge.

The key lesson is procedural: where a decisive point occurs to the adjudicator that neither party has advanced — even one thought to be "that simple" — fairness requires that it be put to the parties before it is adopted.

For responding parties, the case illustrates the continuing importance of distinguishing genuine natural justice complaints from mere disagreement with the merits: the ground that succeeded turned on the adjudicator deciding on an unargued basis, whereas the alleged failure to deal with a defence, and the jurisdictional argument, both failed.

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