1. Can adjudication be used for claims under the Defective Premises Act 1972 even where limitation under the contract has expired? [1]

BDW Trading v Ardmore Construction [2024] EWHC 3235 (TCC)

This case was the first to enforce an Adjudicator’s decision in relation to historic defects under the DPA 1972.

Factual background

BDW Trading Limited (“BDW”) applied for summary judgment to enforce an adjudication award.

The Adjudicator held that Ardmore had breached its duties under the construction contract and that the usual contractual limitation period did not apply in the circumstances given that there had been deliberate concealment by Ardmore relating to the omission of cavity barriers (an exception under the Limitation Act 1980). Under the DPA 1972 the limitation period for bringing claims was 30 years (by virtue of the Building Safety Act 2022).

Judgment

The Court confirmed that adjudication can be used for claims under the DPA 1972, even where limitation under the contract has expired.

Takeaway points

This judgment has enabled an increased number of fire safety disputes to be referred to adjudication.

[1] Adjudication Matters: January 2025 – Walker Morris

2. Does insolvency set-off defeat enforcement of adjudication awards?[2]

Midas Construction Ltd v Harmsworth Pension Funds Trustees Ltd [2025] EWHC 1122 (TCC)[3]

Factual background

This case examined whether insolvency set-off could override enforcement of an adjudicator’s decision. The paying party argued that mutual debts should be set off under insolvency rules, effectively neutralising the adjudication award.

Judgment

The Court held that insolvency set-off can prevent enforcement, even though adjudication aims to maintain cash flow. This decision highlights the tension between insolvency law and the construction industry, confirming that statutory insolvency protections take precedence.

Takeaway points

• Enforcement may fail where insolvency set-off applies — financial due diligence is critical; and
• Claimants should assess solvency risk before commencing adjudication.

[1] Adjudication Matters: May 2025 – Walker Morris

[2] Adjudication Matters: May 2025 – Walker Morris

3. Was taking into account the parties’ previous conduct a frolic of the Adjudicator’s own? Does previous conduct influence an adjudicator’s decision?[4]

Lapp Industries Ltd v 1st Formations Ltd [2025] EWHC 943 (TCC)

This case reviews (amongst other things) whether taking into account the parties’ previous conduct was a frolic of the adjudicator’s own.

Factual background

This case involved a dispute over payment obligations under a construction contract. Formations argued that the adjudicator had gone beyond their remit by considering the parties’ prior conduct and correspondence when deciding the dispute.

Judgment

Formations argued that by taking previous conduct into account, the adjudicator had gone beyond the four corners of the dispute and embarked on a “frolic of their own.”

The Court rejected this, clarifying that adjudicators are permitted to consider prior conduct if it is relevant to interpreting contractual obligations or assessing the issues referred. Doing so does not amount to a jurisdictional error or breach of natural justice, provided the adjudicator remains anchored to the dispute and gives both parties an opportunity to address the material.

The Court emphasised that adjudicators have a degree of latitude in evaluating the factual matrix, and this flexibility is consistent with the purpose of adjudication as a swift and pragmatic process.

Takeaway points

• Parties should assume that their historic behaviour and communications may influence adjudication outcomes.
• Adjudicators can consider prior conduct where it sheds light on contractual interpretation or performance.
• Maintaining consistent and professional correspondence throughout a project is critical.
• The “frolic point” above reinforces that adjudicators are not confined to a narrow reading of the referral notice—they can look at surrounding context, including historic behaviour, as long as it informs the referred dispute and procedural fairness is maintained.

[1] Adjudication Matters: May 2025 – Walker Morris

4. Can an adjudicator award payment to a responding party? [5]

VMA Services Ltd v Project One London Ltd [2025] EWHC 1815 (TCC)

The responding party sought payment of a notified sum as a defence to a true value adjudication.

Factual background

In this “true value ” adjudication, the adjudicator agreed that VMA’s payment application was valid, that no valid notices had been served by Project One London (“POL“), and that the notified sum was due to VMA. He declined to assess the true value of the works, concluding that POL’s failure to pay the notified sum precluded it from pursuing a valuation dispute.

Judgment

This judgment reaffirms that a responding party can be awarded payment in adjudication where the adjudicator determines that a notified sum is due under section 111 of the Construction Act.

Takeaway points

Parties cannot pursue a true value adjudication without first making payment of a notified sum which is due, supporting the fundamental principle of “pay now, argue later” in the construction industry, with the intent to maintain cash flow.

[1] Adjudication Matters: August 2025 – Walker Morris

5. Can a pending Supreme Court appeal justify a stay of enforcement?[6]

Providence Building Services Ltd v Hexagon Housing Association Ltd [2025] (unreported)

This case highlights that initiating an adjudication while appellate proceedings are ongoing presents significant financial risk, potentially exposing parties to adverse cost consequences.

Factual background

Hexagon sought a stay of enforcement after losing in the Court of Appeal on termination rights. With a Supreme Court hearing imminent, Hexagon argued that paying now would risk irrecoverable loss if the appeal succeeded, given Providence’s financial difficulties.

Judgment

The Court granted a stay, exercising its discretion to avoid manifest injustice. Evidence of insolvency risk and the short timeframe before the Supreme Court decision were decisive factors.

Takeaway points

• Stays remain exceptional but are possible where insolvency risk exists; and
• Pending appellate decisions can justify temporary enforcement delays in rare cases.

6. Can a late Payment Notice constitute a valid Pay Less Notice? [7]

Vision Construct Limited -v- Gypcraft Drylining Contractors Limited [2025] EWHC 2707 (TCC)

The recent decision confirms that a notice labelled a “payment notice” cannot take effect as a pay less notice.

Factual background

Vision Construct Limited (“VCL”) had purported to issue a payment notice (the “Payment Notice”) to Gypcraft Drylining Contractors Limited (“Gypcraft“) which stated that a lower sum was due to Gypcraft than the amount claimed under Gypcraft’s application for payment 23 (“Application 23“), VCL had not however served a separate pay less notice, and the Payment Notice was issued 5 days after the deadline expired for issuing a payment notice.

Gypcraft referred a dispute to adjudication seeking the difference between the sum stated in Application 23 and in the Payment Notice. The Adjudicator found that VCL’s Payment Notice was not valid as it had been served late and that Gypcraft was entitled to payment of the sum as notified, together with interest.

VCL then brought proceedings arguing that the late Payment Notice was in fact a valid Pay Less Notice, despite the body of the email and document attached referring to the notice as being a “Payment Notice.”

Judgment

The Court held that a document clearly intended to be and labelled as a “payment notice” cannot retrospectively be re-characterised as a pay less notice.

Takeaway points

• This judgment is a reminder to ensure that notices are served on time, and are being correctly labelled.

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[1] BDW Trading v Ardmore Construction [2024] EWHC 3235 (TCC);

[2] Midas Construction Ltd v Harmsworth Pension Funds Trustees Ltd [2025] EWHC 1122 (TCC);

[3] Lapp Industries Ltd v 1st Formations Ltd [2025] EWHC 943 (TCC);

[4] VMA Services Ltd v Project One London Ltd [2025] EWHC 1815 (TCC);

[5] Providence Building Services Ltd v Hexagon Housing Association Ltd [2025] (unreported);

[6] Vision Construct Limited -v- Gypcraft Drylining Contractors Limited [2025] EWHC 2707 (TCC).

[7] Adjudication Matters: November 2025 – Walker Morris