TCC refuses to enforce £1.6m NEC adjudication award

The Technology and Construction Court (TCC) has issued a rare reminder that there are limits to an adjudicator’s freedom when deciding disputes. 

In Premier Modular Ltd v Maidstone and Tunbridge Wells NHS Trust [2026] EWHC 1404 (TCC), the court refused to enforce an adjudicator’s award of more than £1.6 million after concluding that the adjudicator had breached the rules of natural justice by deciding the dispute on a basis that neither party had advanced. 

The judgment is notable as a rare example of an adjudicator’s decision being refused enforcement on natural justice grounds. 

Background 

Premier Modular Ltd (Premier) were engaged by Maidstone and Tunbridge Wells NHS Trust (the Trust) under an NEC4 Engineering and Construction Contract (ECC) Option A for the design and construction of a modular surgical hub at Maidstone Hospital. 

A dispute arose over delays in the provision of a permanent mains water supply. Premier contended that it required the water supply by 30 October 2023 to carry out critical testing and commissioning activities and that the Trust’s failure to provide the supply until February 2024 delayed completion of the works and caused it to incur additional cost. 

Premier commenced adjudication seeking compensation on the basis that the late provision of the water supply constituted a compensation event under NEC clause 60.1, relying on clauses 60.1(1), 60.1(14) and 60.1(18), relating respectively to changes to the scope, client liabilities and breaches of contract. 

The Trust disputed liability. Whilst it accepted that responsibility for providing the mains water supply rested with it, it maintained that the contract did not require the water supply to be available by any particular date. The Trust further argued that, even if a compensation event had arisen, Premier’s claim was time-barred because it had failed to comply with the contractual notification requirements. 

The adjudicator’s decision 

The adjudicator found in Premier’s favour and awarded approximately £1.65 million. 

However, the adjudicator reached that conclusion on a basis that neither party had advanced. Rather than relying on clauses 60.1(1), 60.1(14) or 60.1(18), the adjudicator determined that a compensation event had arisen under clause 60.1(3), which applies where the client fails to provide something by the date shown in the Accepted Programme. 

That conclusion depended on a finding that a revised programme submitted by Premier had become the Accepted Programme, despite both parties maintaining that the only Accepted Programme was the original programme contained in the contract. Significantly, when the adjudicator asked the parties whether the revised programme constituted an Accepted Programme, both said that it did not. Nevertheless, he concluded that it had and that the Trust’s failure to provide water by the date shown in that programme constituted a compensation event under clause 60.1(3). 

The enforcement proceedings  

Premier sought summary judgment to enforce the adjudicator’s award. The Trust resisted enforcement, arguing that the adjudicator had breached the rules of natural justice by deciding the dispute on a basis that neither party had argued and by adopting a factual position contrary to the parties’ common understanding. 

Deputy High Court Judge Adrian Williamson KC agreed. 

The court emphasised that adjudicators are not required to choose between the precise arguments advanced by the parties and may reach their own conclusions on the evidence before them. However, where an adjudicator intends to determine a dispute on a factual or legal basis that has not been argued by either party, fairness requires that the parties be given an opportunity to address the point. 

Premier argued that the issue had been sufficiently canvassed because the adjudicator had raised questions concerning the status of a revised programme. The court disagreed. The clarification request did not invite submissions on whether clause 60.1(3) formed the basis of Premier’s claim but merely sought clarification on the status of the programme. The judge therefore concluded that the basis on which the adjudicator ultimately decided the dispute had never been properly put to the parties. 

The judge concluded that the adjudicator had effectively invented a case for Premier and had gone off on a “frolic of his own”. The first time the Trust became aware of the case on which it lost was when it received the adjudicator’s decision. That amounted to a material breach of natural justice. The decision was therefore unenforceable. 

A rare exception to the rule 

The judgment reiterates the well-established principles from Carillion Construction Ltd v Devonport Royal Dockyard Ltd: adjudicators’ decisions should generally be enforced even where they contain errors of fact or law. Adjudication remains a “pay now, argue later” regime and the courts will not ordinarily re-examine the merits of an adjudicator’s reasoning. 

Indeed, the court declined to interfere with the adjudicator’s treatment of the Trust’s arguments concerning the notification provisions. What distinguished this case was not a potential error of reasoning, but the fact that the adjudicator determined the dispute on a basis neither party had advanced nor been given the opportunity to address. 

The Birketts view 

Premier Modular is a rare example of the TCC refusing to enforce an adjudicator’s decision on natural justice grounds and provides a clear illustration of where the line will be drawn. The judgment reinforces the distinction between an adjudicator making an error (which will rarely prevent enforcement) and deciding a dispute on a basis that the parties have not had an opportunity to address. 

Importantly, the judgment confirms that an issue is not necessarily “fairly canvassed” merely because a contractual provision has been mentioned during the adjudication. Where an adjudicator intends to determine a dispute on a basis that neither party has advanced, the parties must have a genuine opportunity to comment before a decision is reached. 

For NEC users, the case also highlights the importance of properly operating and documenting the Accepted Programme process throughout the project lifecycle. The dispute ultimately turned on the status of a revised programme and whether it could be treated as an Accepted Programme for the purposes of clause 60.1(3).