Can an assignee to a construction contract refer a dispute to adjudication?

Paragon Group Limited v FK Facades Limited [2026] EWHC 78 (TCC)

Factual background

Paragon Group Ltd (“Paragon“) was the assignee of the employer under a JCT Minor Works 2016 contract originally entered into between Office Depot International (UK) Ltd (“ODI”) and FK Facades Ltd (“FK”).

The contract permitted the employer to assign “the benefit of this Contract at any time without the Contractor’s consent”. ODI assigned the contract to OT Group Ltd in 2021, and OTG then assigned it onwards to Paragon in 2024. Both assignments were notified to FK.

Paragon later terminated the contract, claimed liquidated damages for delay, and referred the dispute to adjudication.

FK raised the following jurisdictional argument in the adjudication:

• Only a “party” to the construction contract may adjudicate, and an assignee is not a “party”. Therefore, the adjudicator lacked jurisdiction.

The adjudicator rejected FK’s jurisdictional challenge and proceeded with the adjudication, finding in Paragon’s favour. FK refused to make payment, so Paragon issued enforcement proceedings.

In the enforcement proceedings FK resisted enforcement by raising the same jurisdictional argument as in the adjudication.

Judgment

The court granted summary judgment enforcing the adjudicator’s decision and held that an assignee may validly refer a dispute to adjudication.

The key findings were:

(1) The wording of the Scheme does not exclude an assignee

Whilst paragraph 1(1) of the Scheme for Construction Contracts (“the Scheme“) states that “any party to a construction contract” may refer a dispute to adjudication, the court held that the reference to “party” could be read as including “any legal assignee of such party, where applicable“.

(2) Assignment transfers the right to adjudicate unless expressly excluded

By virtue of the Law of Property Act 1925, an assignee obtains not only the legal right but also all legal and other remedies that attach to that right, including, absent any contractual restriction, the right to adjudicate.

The court accepted that an assignee does not become a “party” to the contract in the full sense (this would require a novation). However, an assignee stands in the shoes of the assignor for the purpose of enforcing contractual rights and remedies.

(3) Commercial and practical objections did not justify excluding assignees

FK raised that allowing assignees to adjudicate created procedural and practical difficulties. The court found these concerns were overstated because:

• The contractor could rely in defence upon all equities which it could have relied upon as against the assignor.
• The general rule is that a respondent to an adjudication cannot bring a counterclaim against a referring party in any event.
• The risk of inconsistent findings in adjudication is inherent in the adjudication process and does not justify limiting an assignee’s rights.

Moreover, preventing an assignee from adjudicating would undermine commercial expectations and create unnecessary obstacles, forcing assignees to rely on assignors to bring claims on their behalf.

• A claim referred to by an assignee arises under the contract

The court rejected FK’s alternative argument that a claim referred by an assignee arises under the deed of assignment rather than under the contract. The court stated that if, by virtue of the assignment, the assignee stands as a party to the construction contract, then any claim they advance must be regarded as arising under that contract, since that is the only basis on which they can bring a claim as assignee.

The court concluded that the adjudicator had jurisdiction and Paragon was entitled to payment of the sum awarded by the adjudicator

Takeaway points

• The court adopts a robust approach to adjudication enforcement and will not permit technical jurisdictional objections to defeat enforcement unless clearly made out.
• Commercial common sense supports the ability of assignees to adjudicate, and it is unlikely that any arguments raised to the contrary will be successful.
• A dispute referred by an assignee remains a dispute “arising under the contract”, not under the assignment.

What are your options when an Adjudicator has made a “clear error”?

Laycock Mechanical Services Limited v Kingsmead Homes Limited [2025] EWHC 2618 (TCC)

This case considers the circumstances in which the court will exercise its powers outlined in Section 4.9.5 of the TCC Guide for a Part 8 declaration where an adjudicator has made a clear error.

Factual background

Kingsmead Homes Limited (“Kingsmead“), the Contractor, employed Laycock Mechanical Services Limited (“Laycock“), the Subcontractor to carry out plumbing and electrical works at a construction site at Seacombe in the Wirral.

Kingsmead alleged that Laycock was in delay in performing its subcontract works and deducted liquidated damages from the subcontract sum. Laycock initiated an adjudication regarding the liquidated damages. The adjudicator agreed with Laycock and ordered that Kingsmead pay Laycock £27,895.26 plus VAT.

Kingsmead did not make payment and Laycock commenced Part 7 enforcement proceedings in the TCC.  A hearing of Laycock’s claim was listed for 20 January 2025.

Kingsmead sought to resist enforcement by way of a claim under Part 8 for a declaration that the adjudicator had made a clear error. Section 9.4.5 of the TCC Guide provides:

“in cases where an adjudicator has made a clear error (but has acted within his jurisdiction), it may on occasions be appropriate to bring proceedings under Part 8 for a declaration as a pre-emptive response to an anticipated application to enforce the decision.”

As the TCC Guide suggests, Section 9.4.5 only applies to specific “occasions”, these being occasions where:

1. The adjudicator has made a clear error
2. There is a short and self-contained issue arising in the adjudication which the defendant continues to contest
3. The issue requires no oral evidence or any other elaboration beyond what is capable of being provided in the interlocutory hearing for enforcement
4. It is an issue which is unconscionable for the court to ignore

The court considered the above test during a directions hearing held on 13 January 2025.

Judgment

(1) Has the adjudicator made a clear error?

Kingsmead argued that the adjudicator had incorrectly determined that there was no contractual completion date for the works. Kingsmead said that the adjudicator had considered an August 2023 programme and determined that it was not incorporated; but then did not go on to consider whether a July 2023 programme had been incorporated which also provided a completion date for the works.

The court was persuaded that there was sufficient evidence of a clear error where the adjudicator failed to consider (or was otherwise not aware) of the covering email attaching the July 2023 programme. The email clearly confirmed that the parties were aware of that programme and its application pre-contract.

(2) Was there a short and self-contained issue, which Kingsmead continued to contest?

The court was “just persuaded” that Kingsmead had satisfied this requirement, the issue being “as to whether or not there was a completion date agreed to between the parties and no more specific than that“.

(3) Does the issue require oral evidence or other elaboration?

The court agreed with Kingsmead that oral evidence or other elaboration was not required because the issue turned on whether the adjudicator properly considered the contractual effect of the July programme (and this did not require a detailed factual enquiry).

(4) Is the issue unconscionable to ignore?

The court agreed with Kingsmead’s submissions that the circumstances made this issue unconscionable to ignore, and ought to be properly ventilated in a Part 8 hearing.

Takeaway points

The tests in Section 9.4.5 of the TCC Guide was created to narrow the scope of Part 8 claims in adjudication, because the court considered there was a growing practice of parties seeking a declaration to avoid the consequences of adjudication enforcement.

The TCC has made it clear that such practice was “not in accordance with the spirit of the TCC’s procedure for the enforcement of adjudicator’s decisions“.

This case therefore clarifies how Section 9.4.5 operates in practice, and in what circumstances or occasions the court is likely to be receptive to such an application. Here the court identified those submissions that effectively just scraped by, and thus this judgment is a useful yardstick for assessing the merits of an application in the future.

It is also a useful reminder of the very limited occasions in which the court will deviate from the pay now argue later mantra of adjudication.

Are general jurisdictional reservations effective to resist adjudication enforcement?

Murnells London Ltd v Beale [2025] EWHC 2651 (TCC)

Factual background

This case concerns the enforcement of an adjudicator’s decision arising out of renovation works at Foxhill Manor, Northamptonshire. The employer, Mr Beale (“t Beale”), engaged a contractor within the “Murnells” group. A Letter of Intent (“LoI”) was signed in June 2023 naming Murnells Limited (“ML”) as the contractor, but later iterations of a JCT contract sent through DocuSign and ultimately signed by Beale identified Murnells London Limited (“MLL”) as the contractor.

Following delays, termination, and a disputed termination account, MLL commenced adjudication. The adjudicator awarded MLL £365,332.97, but Beale refused to pay. MLL issued enforcement proceedings.

Beale resisted enforcement, raising two principal jurisdiction challenges:

1. The contracting entity – that the adjudication had been commenced by the wrong party MLL, instead of ML.
2. The crystallisation issue – that no dispute had crystallised concerning an extension of time beyond 11 November 2024.

Beale also sought to introduce new arguments on the contracting entity issue at the enforcement stage, that had not been put to the adjudicator during the adjudication.

Judgment

The court rejected Beale’s jurisdictional objections and granted summary judgment enforcing the adjudicator’s decision. The key findings were:

• New jurisdictional arguments could not be raised at the enforcement stage:

Although Beale had attempted to rely on a general reservation of rights, the court held that:

• Any jurisdictional challenge must be appropriate and clear;
• A general reservation cannot be relied upon to introduce a number of new arguments at a later stage.
• The supporting grounds about the waiver of the LoI limit, the LoI prevailing over the contract, or rectification were not raised for the consideration of the adjudicator or MLL during the adjudication and were therefore treated as waived.

The court emphasised the nature of adjudication as a “pay now, argue later” regime, requiring the court to be cautious about general reservations that risk impermissibly expanding jurisdictional issues at the enforcement stage.

• MLL was the contracting party

The court held that Beale had no real prospect of establishing that ML (rather than MLL) was the contractor:

• The draft and final contract named MLL throughout.
• Beale signed the DocuSign contract which named MLL, with no objections raised at the time.
• Explanations offered by Beale for the wrong contracting entity were contradictory or vague.

The court concluded that Beale’s opposition to summary judgement on the contractual entity issue was ‘fanciful’.

• The dispute had crystallised

The court dismissed the crystallisation argument:

• The dispute referred to adjudication was must wider that in relation to an extension of time beyond 11 November 2024.
• MLL had clearly asserted entitlement to “very significant extensions of time” prior to the Notice of Adjudication.
• A detailed termination account and revised programme showing a completion date of 24 April 2025 had been provided before commencing the adjudication.

The court agreed with the approach in St Austell v Dawnus that “every last particular” is not required for crystallisation.

Both jurisdictional challenges failed, and enforcement was granted.

Takeaway points

• General reservations of rights are often ineffective. A responding party must raise specific, timely objections in the adjudication or risk waiving them.
• New arguments should not be manufactured at enforcement stage. The court will not allow a party to expand upon a jurisdictional challenge that was not raised in the adjudication.
• Crystallisation arguments rarely succeed. The general approach of the courts is that a claim which is not accepted in whole or in part within a reasonable time after it is formally advanced is treated as being in dispute.

Smash & Grabs in Ireland – Is there a statutory right to payment in default?

Tenderbids Ltd t/a Bastion v Electrical Waste Management Ltd [2026] IEHC 5

This case considered what we would call in England & Wales a notified sum dispute, or more colloquially, a “smash and grab” and whether adjudication decisions that render such conclusions are enforceable i.e. do they in fact comply with Ireland’s Construction Contracts Act 2013 (the “Act“) (akin to the Housing Grants, Construction and Regeneration Act 1996 in England & Wales).

Factual background

Tenderbids Ltd t/a Bastion (“Tenderbids“), the contractor was employed by Electrical Waste Management Ltd (“EWML“), the Employer on the construction of a metal waste recycling facility in Dublin.

During the works, Tenderbids issued a payment claim notice (the “Payment Notice“) to EWML under Section 4 of the Act. Under the Act (Section 4(3)), if EWHL contested the amounts due and payable as set out in the Payment Notice, then EWHL must deliver a response “not later than 21 days after the payment claim date” which sets out the amounts proposed to be paid with reasons, and the basis for their calculation.

No response was provided by EWHL within the required 21 days, prompting Tenderbids to initiate an adjudication claiming the sums stated in the Payment Notice. The claim was formulated exclusively on the basis that the sums in the Payment Notice became the sum payable (the “notified sum” in English parlance) the moment that EWHL failed to respond within the required 21 days, and that EWHL was precluded from contesting the merits of this sum on a true valuation basis in the adjudication. Significantly, EWHL had actually accepted during the adjudication that this was the correct position in law.

Unsurprisingly therefore, the adjudicator awarded the sums sought by Tenderbids. After EWHL failed to make payment, Tenderbids applied to have the decision enforced in the Irish High Court (by way of Section 6(1) of the Act).

Judgment

As a starting point, the court observed that in Ireland the court will refuse to enforce an adjudicator’s decision where the underlying dispute is not properly amenable to the Irish statutory adjudication architecture (as this would “undermine the legislative intent“).

In that context, the court considered there were three issues that required determination:

1. The definition of a “payment dispute” for the purposes of the Act – reflecting the Employer’s contention that the adjudication referral did not constitute a payment dispute;

2. The nature and extent of the arguments which can be put forward in opposition to an application to enforce an adjudicator’s decision – reflecting EWHL’s contention that there is no “default direction to pay” under the Act, and the court should consider this point effectively de novo; and

3. The payment claim notice procedure, which required the court to consider the question of what consequences, if any, follow for a paying party if it fails to deliver a response to a payment claim notice.

(1) was fundamentally a jurisdictional point, which the court considered had little merit on the facts, and in any event, the Employer was taken to have waived any reliance on it.

(2) was an inherently more complex issue, where the court observed that factually, not only was this argument never raised by EWHL in the adjudication, but EWHL had in fact conceded that Tenderbids’ default payment argument was the correct position in law. This would typically be fatal to resistance of enforcement as it undermines the mantra of the “pay now argue later” regime which is foundational to the Act.

However, the court considered that, in this case, “the question of whether a default direction to pay arises under the [Act] is one which transcends the facts of this particular case…… If, on the proper interpretation of the Act, it does not provide for a default direction to pay, then it is imperative that this be declared now rather than have the contended-for error replicated in other adjudications”. The court thus agreed to consider this defence for the “greater good”.

This decision led neatly to the court’s conclusions on (3), where they said that the Act is deliberately silent on what happens in circumstances where the paying party does not respond to a payee’s payment claim notice. Further, the court said that implying default payment obligations via legislative interpretation in such circumstances is a bridge too far where there is no basis to ascertain whether this was in fact the intention of the Irish legislature (the Oireachtas) or not. Consequently, the court concluded that there is no default payment obligation imposed by the Act.

Takeaway points

In the context of Irish construction disputes, the repercussions of this judgment are sizeable, in that statutory smash & grab claims are now unlikely to succeed. Many construction contracts in Ireland have, or will now seek, to accommodate for this by virtue of deliberate amendments to their contractual payment provisions.

For those practicing in England this case also provides a useful barometer for comparison. Of course, unlike Ireland, in England the statutory regime expressly provides for default payment obligations where no Payment Notice and/or Pay Less Notice (in the English parlance) is provided by the payer. That said, the pains the court took to mark this case out as exceptional, and for the “greater good”, stand out. It will be intriguing to see how the Irish construction market adjusts. In the meantime, this should serve as yet another reminder for parties that prevention is better than a cure i.e. timely administration of your contractual payment provisions, saves you a lot of trouble down the road.

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[1] Paragon Group Limited v FK Facades Limited [2026] EWHC 78 (TCC)

[2] Laycock Mechanical Services Limited v Kingsmead Homes Limited [2025] EWHC 2618 (TCC)

[3] Murnells London Ltd v Beale [2025] EWHC 2651 (TCC)

[4] Tenderbids Ltd t/a Bastion v Electrical Waste Management Ltd [2026] IEHC 5