1. Are adjudication decisions enforceable where they are made by the same adjudicator under two related but separate subcontracts?

Construction Muzzy Ltd v Davis Construction (South East) Ltd [2025] EWHC 2258 (TCC)

Factual Background

In 2023, Construction Muzzy Ltd (“Construction Muzzy“) was engaged by Davis Construction (South East) Limited (“Davis Construction“) under two subcontracts to provide groundworks and drainage works at a site in Essex where 45 new homes were being built. Davis Construction was the main contractor on the project.

Davis Construction was unhappy with the works carried out by Construction Muzzy and asked Construction Muzzy to leave the site later that year, leaving the works incomplete. Construction Muzzy brought two separate adjudications (relating to 1) groundworks and 2) drainage works) against Davis Construction for monies it claimed it was owed under payment applications.

It claimed £98,533 plus VAT in respect of the groundworks adjudication and £102,666 plus VAT in respect of the drainage adjudication. Davis Construction argued the payment applications were invalid and implied contractual terms were therefore needed for the payment process.

The adjudicator found in favour of Construction Muzzy in respect of both adjudications in January and March 2025 respectively. Construction Muzzy sought to enforce the adjudicator’s decisions with summary judgment.

Davis Construction raised three main defences to enforcement:

1. Davis Construction claimed there had been a breach of natural justice in respect of the groundworks adjudication, as the adjudicator had relied on submission of a late surrejoinder by Construction Muzzy, which had been served without permission. Davis Construction said the submission should either have been ignored, or the adjudicator should have asked Davis Construction to provide its response to the document.
2. In relation to the drainage adjudication, Davis Construction claimed the adjudicator lacked jurisdiction because the dispute was substantially the same as the dispute in the groundworks adjudication. Davis Construction refused to participate in the adjudication because it argued the adjudicator should have resigned, relying on the judgment of Coulson LJ in Sudlows v Global Switch Estates [1]. In Sudlows, it was held that the intention of the Scheme for Construction Contract (England and Wales) Regulations 1998 (as amended) (“the Scheme“) is to prevent serial adjudications and provide temporary finality for each dispute. In that case, it was established that there needs to be flexibility to prevent a party from re-adjudicating something that has already been decided, using common sense and fairness.
3. Where the adjudicator did not resign from the drainage adjudication, Davis Construction claimed the adjudicator’s approach to the drainage adjudication would be “one of predetermination rather than one of fresh eyes and an open mind”. It claimed the adjudicator would therefore have been unable to undertake a fair and balanced review of the facts and evidence.

Judgment

The Court awarded summary judgment to Construction Muzzy in respect of both adjudications. All three defences to enforcement were rejected.

Davis Construction’s defence lacked any real prospect of success.

On the potential breach of natural justice in respect of the groundworks adjudication, the Court held there was no more than a “fanciful prospect of success” here. This argument was not persuasive.

The Court held that the late surrejoinder was not unfair and dealt with expanded matters from Davis Construction’s rejoinder in the groundworks adjudication. This issue was found to be peripheral to the overall decision of the adjudicator. It was not decisive or important enough in the decision making process to have any real prospect in succeeding as a defence to enforcement.

In respect of the drainage adjudication and the jurisdictional argument, the Court held that even where there were superficial similarities between the two adjudications, they arose from separate subcontracts with different factual matrixes and so were valid. There was no overlap in findings of fact between the two disputes.

The adjudicator did not lack jurisdiction due to the two disputes being “substantially the same” and was not required to resign. The purpose of the duty to resign was to prevent a party from adjudicating a claim again that they have already lost, rather than preventing a successful party from putting forward the same argument in a dispute in relation to a different contract.

Further, the Court found the adjudicator in the drainage adjudication had properly reviewed all evidence before making their decision. The argument that the adjudicator’s approach was one of “predetermination” was not persuasive , as Davis Construction had chosen not to submit evidence in respect of the drainage adjudication when it could have done. Davis Construction’s decision not to participate left the adjudicator with “no ammunition to proceed differently”.

Takeaway points

This case clearly demonstrates that the Court will take a pro enforcement stance on adjudications which lends support to the established principle of “pay now, argue later” behind the Construction Act 1996 [3].

Further, in order to challenge enforcement of an adjudicator’s decision, a material level of pre-determination, compelling reasons and strong arguments will be necessary to persuade the Court, rather than those with just a “fanciful prospect of success”.

[1] Sudlows v Global Switch Estates 1 [2023] EWCA Civ 813
[2] The Civil Procedure Rules 1998, Part 24.3
[3] Housing Grant, Construction and Regeneration Act 1996

2. Is a pending Supreme Court judgment sufficient to stay execution of an adjudicator’s decision?

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

Factual Background

Hexagon Housing Association Limited (“Hexagon”) engaged Providence Building Services Limited (“Providence”) as contractor under a JCT Design and Build Contract 2016 Edition with bespoke amendments in February 2019 (the “Contract”). Under the Contract, Hexagon was obliged to make interim payments to Providence and if it did not do so by the relevant deadline, Providence could give Hexagon a notice of ‘specified default’.

If the specified default was not remedied within 28 days of receipt of such notice, then grounds for termination would arise for Employer’s default under Clause 8.9.3 of the Contract which is set out below:

“8.9.3 If a specified default or a specified suspension event continues for 28 days from the receipt of notice under clause 8.9.1 or 8.9.2, the Contractor may on, or within 21 days from, the expiry of that 28-day period by a further notice to the Employer terminate the Contractor’s employment under this Contract.”

The Contract also contained grounds for termination where there was a repetition of a specified default.at Clause 8.9.4:

“8.9.4 If the Contractor for any reason does not give the further notice referred to in clause 8.9.3, but (whether previously repeated or not): 

• .1 the Employer repeats a specified default; 
• .2 a specified suspension event is repeated for any period, such that the regular progress of the Works is or is likely to be materially affected thereby, 

then, upon or within 28 days after such repetition, the Contractor may by notice to the Employer terminate the Contractor’s employment under this Contract.”

During the contract works, Hexagon failed to make payment to Providence on two separate occasions which led Providence to serve a notice of termination stating that there had been a repetition of a specified default and then terminating the Contract. Hexagon challenged the validity of the termination and referred the dispute to adjudication. The adjudicator found in favour of Hexagon.

Providence then made a Part 8 claim in the TCC requesting a declaration that Providence was entitled to terminate the contract relying upon a repeat of a specified default. The TCC held that Providence could not terminate the Contract under Clause 8.9.4 (repetition of specified default) unless the default under Clause 8.9.3 had been repeated.

Here the TCC said that as Hexagon had paid the interim payment notified under Clause 8.9.3 before the Notice of Termination was issued, the specified default had not been repeated, as it had been cured. The failure to pay a later interim payment was a new default, not the specified default previously notified under Clause 8.9.3.  As such Providence’s attempt to terminate the Contract was invalid.

Providence referred this matter to the Court of Appeal.  The Court of Appeal found in favour of Providence and said that the natural and ordinary meaning of the wording of Clause 8.9.4 allowed Providence to terminate regardless of whether the non-payment notified as a specified default under Clause 8.9.3 had been cured.

As such a later incident of non-payment for a subsequent interim application for payment, was a repetition of a specified default. i.e. the specified default was non-payment generally rather than non-payment of a specific application.

The Supreme Court has given permission for Hexagon to appeal the decision. The Supreme Court hearing is listed for 10 November 2025.

After the Supreme Court had given Hexagon permission to appeal, Providence referred a dispute as to the termination account to adjudication. Providence sought £1.2 million and Hexagon made a counterclaim for circa £6 million.

The Adjudicator awarded Providence circa £450,000 and in doing so relied on the assumption that Providence was entitled to terminate following the decision made by the Court of Appeal.

Hexagon sought from the TCC a stay of execution of the adjudicator’s decision pending a judgment in the Supreme Court.  Hexagon contended that Providence was facing the risk of insolvency, and therefore a stay was required to protect Hexagon from a scenario where Hexagon paid Providence and then Providence was unable to reimburse the payment to Hexagon if the decision reached at the Supreme Court reversed that which was reached at the Court of Appeal.

Application for a Stay

The TCC granted Hexagon’s application for stay until the Supreme Court makes their decision. The court considered a number of key legal principles drawn from Wimbledon v Vago, Galliford Try v Estura and Bexheat v Essex Group Services.

Wimbledon v Vago – Prompt Payment of Adjudication Awards

In the first instance adjudication awards should always be enforced. Successful parties should not be delayed access to their award.

This means that in practice, successful stay applications are exceptional. A stay is usually granted where it is proved on evidence or by common ground that the claimant will not be able to repay sums awarded on final determination. However, if the financial position of the claimant mirrors that of when they had entered the contract, or is only worse because of the defendant’s failure to pay, the stay will likely not be granted.

In Providence v Hexagon, the TCC applied the Wimbledon v Vago rule deciding on the evidence that Providence would be unable to repay if the Supreme Court decided in Hexagon’s favour. Further, it was held that the financial position of Providence had deteriorated since the date of the Contract.

Whilst thought was given to whether Hexagon exacerbated the deterioration of Providence’s financial position through causing it to incur legal costs, ultimately it was decided that legal costs were part and parcel of litigation and that on the balance of prejudice, the risk of Hexagon facing an irrecoverable loss was greater than the risk of Providence’s insolvency. Ultimately, Hexagon had not been the cause of Providence’s worsened financial position.

Galliford Try v Estura and Bexheat v Essex Group Services – The Courts Can Exercise Discretion to Grant a Stay of Enforcement:

These cases establish that the court has broad discretion to either grant or refuse a stay so as to prevent manifest injustice. In other words, enforcement of an adjudicator’s decision could be considered the technically correct thing to do but where doing so has the potential to lead to a clearly unfair outcome, such as if Hexagon were to succeed at the Supreme Court and be unable to recover its loss, then the court can exercise discretion. The exercise of that discretion depends on the Courts assessment of ‘all the circumstances’.

In the context of Providence v Hexagon, awarding a stay was considered to be the fairest outcome. It was believed a stay would be unlikely to cause immediate risk to Providence as there would only be a short period before final determination and enforcement of the adjudication decision in favour of Providence if the Supreme Court decided in its favour.

Stay Granted

Overall, although the Court had sympathy for Providence’s financial difficulties, these difficulties were largely born from issues unrelated to the costs it had incurred in litigation (which were seen as a natural consequence of proceedings regardless). Taking into account all factors, preference was therefore given to Hexagon and a stay was awarded.

Takeaway Points

The judgment highlights:

• The principles established in Wimbledon v Vago remain the primary benchmark for granting a stay. However, the courts retain a broad discretion to depart from this framework, which will only be exercised in narrowly defined and exceptional circumstances.
• While substantial legal costs may contribute to financial deterioration, they are unlikely to justify a stay unless the defendant’s conduct within the proceedings is demonstrably unreasonable or oppressive.
• Forthcoming Supreme Court decisions, such as the hearing scheduled for 10 November 2025, may justify a limited and proportionate stay, particularly where the outcome could materially affect the issues in dispute.
• Initiating an adjudication while appellate proceedings are ongoing presents considerable financial risk, especially for parties with constrained resources or exposure to adverse costs consequences.

[1] Wimbledon Construction Company 2000 Limited v Derek Vago [2005] EWHC 1086 (TCC)
[2] Galliford Try Building Ltd v Estura Ltd [2015] EWHC 412 (TCC)
[3] Bexheat Ltd v Essex Services Group Ltd [2022] EWHC 936 (TCC)

How can we support you

If you have any queries in respect of this bulletin or would like to know more about adjudication please contact Carly Thorpe, Juliet Gough or Joshua Clough.

If you’d like to receive this and other similar updates direct to your inbox, please click the link here.

Explore our Adjudication Basics video series here.