Adjudication Matters: October 2026

Welcome to the October 2026 edition of Adjudication Matters, where we discuss the latest key developments in adjudication.

In this month’s bulletin, we look at:

1. In Scotland, when is an adjudicator’s decision a breach of natural justice?
2. When can an adjudicator rely on evidence not advanced by either party?

When is an adjudicator’s decision a breach of natural justice?

Entexol Ltd v Sked Construction Ltd [2026] CSOH 80 – Entexol Ltd v Sked Construction Ltd [2026] CSOH 80 (25 August 2026)

Factual Background

This Scottish case concerned a dispute between Entexol Ltd (‘Entexol’), the sub-contractor, and Sked Construction Ltd (‘Sked’), the contractor. Following a second adjudication, the adjudicator awarded Entexol £113,767.

During the adjudication, Sked argued that an emailed instruction had fixed the completion date under the sub-contract as 13 November 2024. The adjudicator rejected that position and concluded that time was at large.

Sked resisted the enforcement of the adjudicator’s decision on the basis that the adjudicator had breached the requirements of natural justice. Sked argued that neither party had submitted that time was at large and that, by reaching that conclusion without inviting further submissions, the adjudicator had departed from the parties’ cases and gone on a ‘frolic of his own’. Sked also argued that it had not been given an opportunity to establish what would have been a reasonable period for completion.

Entexol’s position was that the adjudicator had not adopted a new case. Instead, the adjudicator had simply rejected Sked’s argument that the emailed instruction fixed the completion date. Entexol also contended that Sked bore the burden of establishing the date by which the works should  have been completed.

The issue before the Court

The issue for Lord Lake in the Outer House of the Court of Session was whether the adjudicator had breached the rules of natural justice by concluding that time was at large when neither party had expressly advanced that position.

Judgment

The Court rejected Sked’s natural justice challenge and granted decree for the £113,767 awarded by the adjudicator. It did not, however, grant summary decree in respect of the separate £10,000 claim, as a factual dispute remained concerning the information that Entexol was required to provide.

Lord Lake held that the adjudicator’s reference to time being at large was a consequence of his decision on the matters placed before him, rather than the reason for that decision. The adjudicator had rejected Sked’s contention that the sub-contract required completion by 13 November 2024. Sked had not put forward an alternative case that the works had not been completed within a reasonable time. Lord Lake went on to note that it was “perhaps open to question” whether this should properly be characterised as time being at large, rather than simply that the works had to be completed within a reasonable time – but held that this did not affect the outcome, describing the reference to time being at large as “something of a red herring.” On his analysis, the defender had not failed because “time was at large” – it failed because it could not establish that the works should have been completed by the date  pleaded.

The Court also rejected the argument that the adjudicator was required to notify the parties and invite further submissions once he was minded to reject Sked’s position. Lord Lake observed that there would be no equivalent requirement in court proceedings and that the tight timescales applicable to adjudications would make such a requirement impracticable.

The adjudicator had therefore not adopted a novel case outside the scope of the parties’ submissions. His conclusion that time was at large followed directly from his rejection of Sked’s case as to the contractual completion date.

Takeaway Points

Although a Scottish decision, the case provides useful guidance on the circumstances in which an adjudicator may reach a conclusion not expressly advanced by either party without breaching the rules of natural justice and when an adjudicator should seek further submissions from the parties.

This judgment provides a useful reminder that:

• an adjudicator does not necessarily breach natural justice simply because their conclusion has not been expressly advanced by either party;
• the Court will distinguish between an adjudicator adopting a genuinely new line of reasoning and reaching a conclusion that follows from rejecting one party’s case;
• a party should consider advancing an alternative case if its primary argument is rejected, particularly where it bears the burden of establishing the relevant position;
• an adjudicator isn’t ordinarily required to invite further submission just because they are minded to reject a party’s primary argument; and
• given the courts’ reluctance to interfere with adjudicators’ decisions, parties should generally address any available alternative arguments during the adjudication rather than seeking to raise a natural justice challenge at the enforcement stage.

When can an adjudicator rely on evidence not advanced by either party?

Coventry & Warwickshire Development Partnership LLP v Avison Young (UK) Limited [2026] EWHC 2319 (TCC) – Coventry & Warwickshire Development Partnership LLP v Avison Young (UK) Ltd [2026] EWHC 2319 (TCC) (15 September 2026)

Coventry & Warwickshire Development Partnership LLP (‘CWDP’) appointed Avison Young (UK) Limited (‘Avison Young’) to act as NEC project manager and supervisor in connection with development works at Gateway South in Coventry.

CWDP alleged that Avison Young had failed to exercise proper care and skill when assessing and certifying sums due to Buckingham Group Contracting Ltd (‘the Contractor’).

CWDP’s case was that  Avison Young had significantly over-valued the amounts due to the Contractor and that this had caused loss because it had overpaid the Contractor, meaning the overpayment could not be recouped due to the Contractor’s subsequent insolvency .

CWDP referred the dispute to adjudication. The adjudicator awarded CWDP £8,729,179.33 (inclusive of damages and interest). Avison Young refused to pay and CWDP commenced enforcement proceedings.

Avison Young resisted enforcement on the grounds that:

• the adjudicator had failed to determine the dispute referred to him and had instead undertaken his own valuation exercise
• the adjudicator hadn’t provided adequate reasons for his decision
• the adjudicator had breached the requirements of natural justice, principally by relying on an assessment prepared by Gardiner & Theobald in March 2024 (the ‘G&T Assessment’), which neither party had advanced as the basis of its case in the adjudication
• alternatively, parts of the adjudicator’s decision should be cut off and not enforced

Judgment

The TCC rejected Avison Young’s arguments and granted summary judgment enforcing the adjudicator’s decision.

The Court held that the adjudicator had addressed the correct dispute. Although the decision didn’t deal with breach, causation and loss in separate sections, those issues had been considered throughout the adjudicator’s analysis. The adjudicator had therefore determined whether Avison Young had failed to perform its duties with the required skill and care and the loss resulting from those failures.

The Court also found that the adjudicator’s reasons were adequate. When the decision was read as a whole, the parties could understand what had been decided and why. An adjudicator isn’t required to address every argument advanced by the parties or structure their reasoning in the same way as a court judgment.

There was no breach of natural justice arising from the adjudicator’s reliance on the G&T Assessment. The assessment was already material before him, and he told the parties that he regarded it as potentially relevant, explained how he might use it and invited submissions. He also offered the parties a joint meeting to discuss it. Both parties made detailed submissions but argued that he shouldn’t adopt the assessment. That didn’t prevent him from relying on it once they had been given a fair opportunity to address its relevance and proposed use. Nor was he required to notify the parties again after receiving their submissions.

Takeaway points

This judgment confirms that:

• an adjudicator can reach a conclusion that neither party has positively advanced, provided the relevant material and issues have been fairly discussed and considered
• giving the parties a fair opportunity to address a proposed approach doesn’t require the adjudicator to accept either party’s submissions
• an adjudicator isn’t required to repeat the consultation exercise after receiving the parties’ submissions
• reasons should be read as a whole and need only allow the parties to understand what was decided and why
• answering the right question in the wrong way will ordinarily amount to an error of fact or law within jurisdiction, rather than a jurisdictional defect
• the court won’t use severance to recalculate an award by substituting a different conclusion within a connected chain of reasoning

Adjudication enforcement: How we can support you

These decisions underline the courts’ continued reluctance to interfere with adjudicators’ decisions where the dispute has been addressed, and the procedure has been fair.

An adjudicator may reject a party’s case, draw a consequential conclusion, or rely on material already before them, even if neither party has advanced the precise outcome ultimately reached. The key question is whether the parties had a fair opportunity to address any materially new issue or proposed approach.

For parties to an adjudication, the practical message is clear: present alternative cases where appropriate, engage fully when an adjudicator raises an issue, and don’t assume that disagreement with the reasoning will provide grounds to resist enforcement. If you’re preparing for an adjudication or considering an enforcement challenge, our Construction & Engineering team can help you assess the position and develop a fair strategy.