Adjudication Matters: September 2026

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

In this month’s bulletin we look at:

1. Can an employer claw back advance payments through an interim certificate before the contractual repayment triggers arise?
2. Can a payment application be valid if it does not contain all of the details that the contract states it should contain?

Can an employer claw back advance payments through an interim certificate before the contractual repayment triggers arise?

Westgreen Construction Ltd v Kiryukhina [2026] EWHC 2189 (TCC) [link]

Factual Background

Westgreen Construction Limited (WCL) was engaged by Mrs Irina Kiryukhina (Kiryukhina) under a JCT Standard Building Contract without Quantities, 2016 edition, with bespoke amendments, for construction and refurbishment works at a residential property in St John’s Wood, London.

The contract provided for two advance payments totalling £650,000. Clause 4.7 of the contract contained bespoke provisions governing repayment of those sums, providing that reimbursement would only occur upon specified events, including agreement and payment of the final account, completion of the final certification process, or termination.

The Contract Administrator subsequently sought WCL’s agreement to amend clause 4.7 to allow the advance payments to be recovered before the final account was agreed. WCL refused, maintaining that the agreed repayment mechanism formed an important part of the contractual bargain.

Notwithstanding this, the Contract Administrator omitted the £650,000 advance payments from Interim Certificate 25, effectively recovering the sums before any of the contractual repayment triggers under clause 4.7 had occurred.

WCL referred this matter to adjudication, contending that the £650,000 should have remained within the gross valuation. The adjudicator agreed with WCL. Kiryukhina did not pay, and WCL issued enforcement proceedings in the TCC.

Kiryukhina argued that the dispute referred to adjudication was limited to whether the £650,000 should have been included in the gross valuation in Interim Certificate 25, and that the adjudicator exceeded his jurisdiction by considering the parties’ treatment of the advance payments under earlier certificates as evidencing an agreed method for dealing with the advance payments.

Kiryukhina further contended that the advance payments were a bespoke, ring-fenced arrangement operating outside the standard gross valuation provisions, and that WCL had advanced a new argument in its Reply which Kiryukhina had had insufficient opportunity to address. Kiryukhina also argued that the adjudicator had relied on a separate finding, namely that the premature recovery of the advance payments breached clause 4.7, without giving the parties a fair opportunity to comment on that issue.

Kiryukhina also applied for a stay of execution under CPR 83.7, arguing that special circumstances existed because repayment of the advance payments would shortly become due following her alleged termination of the contract and the achievement of practical completion. Kiryukhina relied on a second adjudication concerning aspects of Interim Certificate 27, including variations, loss and expense, retention and liquidated damages, arguing that the remaining issues affecting the final account had been significantly narrowed and that reimbursement of the £650,000 was therefore imminent.

Judgment

The Court rejected Mrs Kiryukhina’s arguments and enforced the adjudicator’s decision.

The Court held that:

• the adjudicator had determined the dispute that had been referred to him, using arguments and evidence advanced by both parties
• the adjudicator had not exceeded his jurisdiction
• there had been no material breach of natural justice
• the contractual requirements for repayment of the advance payments had not yet arisen.

The Court also refused the application for a stay of execution. It held that none of the contractual events triggering repayment under clause 4.7 had occurred and that there were no special circumstances justifying a departure from the usual position that an adjudicator’s decision should be enforced immediately.

Takeaway points

• advance payment provisions will be enforced strictly in accordance with their contractual wording
• an employer cannot recover advance payments early through the interim valuation process unless the contract expressly permits it
• jurisdictional and natural justice challenges will continue to face a high threshold where they amount to disagreements with the adjudicator’s reasoning rather than genuine procedural unfairness

Can a payment application be valid if it does not contain all of the details that the contract states it should contain?

Netomnia Ltd v MJ Quinn Integrated Services Ltd [2026] EWHC 1824 (TCC) [link]

Factual Background

Netomnia Limited (“Netomnia“), the operator of a fibre-optic network, engaged MJ Quinn Integrated Services Limited (“MJ Quinn“) under a framework agreement for the design, installation, and maintenance of telecommunications infrastructure. The contract required any application for payment to include certain information, including the relevant purchase order number and any information reasonably required by Netomnia to verify the accuracy of the sums claimed.

On 5 February 2026, MJ Quinn submitted an application for payment in the sum of £3,770.84. The application formed part of a wider batch of 168 payment applications submitted on the same day with a combined value of more than £4.7 million. While the application identified the relevant work order, it did not include a purchase order number, polygon ID, or feature ID. Netomnia argued that this information was necessary to identify the relevant works and verify the accuracy of the sums claimed. Netomnia also pointed out that those details had been provided in previous payment applications submitted by MJ Quinn.

MJ Quinn subsequently referred this dispute to adjudication, contending that its application was valid and that Netomnia had failed to serve a valid pay less notice. The adjudicator agreed and awarded payment of the sum claimed.

Netomnia commenced Part 8 proceedings in the TCC seeking declarations that the application did not comply with the payment provisions of the contract and therefore was not valid.

MJ Quinn disputed this and alleged that an estoppel by convention had arisen because Netomnia had previously made payments against applications in which no purchase order was referenced in the payment application.

Judgment

The TCC found in favour of Netomnia and held that the payment application did not satisfy the contractual requirements governing applications for payment. In particular, the application failed to include information reasonably required to verify the accuracy of the sums claimed and did not reference the relevant purchase order as expressly required by the contract.

The Court rejected MJ Quinn’s argument that the contractual payment mechanism was inadequate and should be replaced by the Scheme for Construction Contracts. The Court also rejected arguments based on estoppel arising from the parties’ previous course of dealing. In rejecting this argument, the Court concluded that in order for estoppel by convention to arise, there would have had to have been a shared, communicated assumption or course of dealing where Netomnia regularly made payments against applications that omitted the purchase order number, the polygon ID and feature ID, which was not the case.

As the payment application failed to comply with the contractual requirements, it was not valid. The adjudicator’s conclusion was therefore incorrect, and Netomnia was entitled to the declarations sought.

Takeaway Points

• payment applications must comply strictly with the contractual requirements governing their form and content
• administrative requirements, such as a purchase order number, can be critical to the validity of a payment application where expressly required by the contract
• parties should be cautious about assuming that a previous course of dealing will excuse non-compliance with contractual payment procedures
• the TCC remains willing to use Part 8 proceedings to determine discrete issues concerning the validity of payment notices and payment applications

How can we support you

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