Background
BDP Construction Limited entered into a JCT Design and Build Contract 2016 (amended) with Cygnet Behavioural Health Limited to construct a hospital at 140 Wolverhampton Road, Wolverhampton. Practical completion was achieved on 18 July 2024, but the parties fundamentally disputed the contractual completion date: BDP contended it was 26 April 2024 based on amendments dated 13 March 2024, while Cygnet contended it was 29 February 2024 based on amendments dated 27 September 2022. This dispute had direct consequences for liquidated damages liability, with BDP claiming the rate was £14,500 per week and Cygnet claiming £1,000 per day—resulting in a disputed claim of £141,000.
The parties referred the dispute to adjudication. The adjudicator issued a decision on 9 March 2026 determining that neither party had proven its case regarding the applicable liquidated damages rate, and therefore Cygnet was not entitled to claim liquidated damages. The adjudicator also ordered Cygnet to pay the retention sum to BDP. Cygnet refused to comply with the decision, and BDP applied for summary judgment to enforce it. Cygnet resisted enforcement, arguing the adjudicator had acted in excess of jurisdiction and breached natural justice by rejecting both parties’ contentions.
The Court’s Holding
Mr Justice Constable upheld the adjudicator’s decision and granted summary judgment in favor of BDP. The court rejected Cygnet’s jurisdictional argument, holding that the parties had not agreed to limit the adjudicator’s jurisdiction to a binary choice between the two competing rates. Although both parties advanced single, opposing contentions, the referral notice did not expressly restrict the adjudicator to choosing between them. The adjudicator was therefore entitled, in the ordinary course, to determine that neither party had proven its case—a common occurrence in litigation. The fact that one party failed to establish its contentions did not automatically mandate acceptance of the other party’s case.
The court similarly rejected the natural justice argument. Because the adjudicator was merely finding that neither party had discharged its evidential burden (rather than proposing a third positive answer neither party contended for), he was not obliged to flag this conclusion in advance or invite further submissions. The parties had already submitted through a surrejoinder, and the adjudicator was entitled to assess the evidence and reach his conclusion. Even if a breach of natural justice had occurred, the court found it would not have been material: Cygnet’s proposed alternative argument (that clause 2.29.2 permitted a lower rate to be specified in the notice) had no reasonable prospects of success, as one cannot identify a “lesser” rate when neither party has proven what the contractually agreed rate is.
Key Takeaways
- An adjudicator can find that neither party has proven its case, even when both parties contend for specific, opposing outcomes, provided there is no express agreement limiting jurisdiction to a binary choice.
- An adjudicator is not required to notify parties in advance that he intends to reject both sides’ contentions on a factual or contractual matter, as this constitutes ordinary factfinding rather than introduction of a novel proposition.
- Courts enforce adjudication decisions robustly, overturning them only for clear jurisdictional excess or serious, material breaches of natural justice—a high bar that Cygnet failed to meet.
Why It Matters
This decision provides crucial guidance on the enforceability of adjudication awards in construction disputes where the adjudicator concludes that neither party has proven its case. It rejects the argument that parties implicitly agree to restrict an adjudicator’s jurisdiction when they advance opposing contentions, clarifying that absence of express language broadening jurisdiction does not create a jurisdictional ringfence. This has significant implications for contract formation disputes in construction, where parties often advance competing versions of agreed terms: an adjudicator may find neither version was actually agreed without exceeding jurisdiction.
The decision also reinforces the robust approach English courts take to enforcing adjudication decisions. By declining to impose a requirement that adjudicators flag negative findings about both parties’ cases in advance, the court reduces opportunities for tactical challenges to enforcement and protects the speedy, binding nature of adjudication—a central purpose of the statutory regime. For practitioners, the decision confirms that evidentiary burdens operate normally in adjudication and that failing to prove one’s case does not guarantee the opposing party’s case succeeds.