‘Time constraints’, adjudication timetables and natural justice – Home Group Ltd v MPS Housing Ltd [2023] EWHC 1946 (TCC)

Parties can often be surprised at the tight timescales in adjudication, with responding parties often only given 7 days to respond to a Referral. It is now almost standard for parties to seek extensions in the timetable, often pleading natural justice concerns to the adjudicator when requesting them.

As adjudications become increasingly complex and higher value this will only become more common. But how long is long enough? Can a party really bring natural justice challenges based on a lack of time to respond?

This judgment cited some helpful principles around timetabling in complex and high-value disputes.

Background

Home Group Ltd (“HGL”) sought summary enforcement of the adjudication decision (the “Decision”) of Mr Derek Pye (“the Adjudicator”) dated 28 April 2023. In the Decision, Mr Pye ordered payment by MPS Housing Ltd (“MPS”) to HGL of £6,565,831.94, plus interest and 85% of his fee.

HGL claimed termination losses that they argued were caused by MPS’ repudiatory breach of a JCT Measured Term Contract (the “Contract”) under which MPS had been carrying out maintenance and repair works to HGL’s properties. HGL argued MPS had invalidly sought to terminate the Contract.

HGL referred the matter to adjudication. HGL’s referral included a quantum expert report consisting of 155 pages, with 76 appendices, comprised of 202 files in 11 sub-folders, amounting to 338 megabytes of data and a further 2,325 files in 327 sub-folders and 5 factual witness statements. MPS had 13 working days to produce its response to the referral.

MPS were found to have repudiated the Contract and were liable for over £6.5m in damages. In subsequent proceedings, MPS sought to resist enforcement of the award on the basis that the adjudicator had breached the rules of natural justice by failing to provide MPS with sufficient time to respond.

Judgment

The court stated that it is well-established that the size and complexity of a dispute is no basis to argue that it should not be referred to adjudication. Rather, it is a question of whether the adjudicator has appreciated the nature of the issues referred and is satisfied that they can “do broad justice between the parties” in reaching a decision within the time limit.

The court’s review of the material suggested that MPS were able to engage in the substance of the claim, and indeed were successful in undermining several high value aspects of the claim.

Accordingly, the court rejected MPS’ submission that because of the volume of material, constraints of time, and access to material there had been a breach of natural justice. HGL’s claim was therefore enforced in full.

As a result, it gave judgment for HGL in the sums of £6,565,931.94, consistent with the second adjudication.

Analysis

Adjudication is a rough justice process and will always have a swift timetable. The case serves as a reminder to try to prepare for impending disputes as much as possible, seek to delay formal disputes to allow yourself more time, and that when in an adjudication, to work quickly.

The court also noted that in the run-up to the adjudication MPS did not engage with draft reports submitted to it by HGL. It viewed this as a “strategically driven in an attempt to create a jurisdictional challenge that no dispute had crystallised” which would have limited merit. MPS could have spent this time preparing responses to HGL’s submissions ahead of the adjudication.

That could perhaps be taken as a hint to parties in dispute that time is usually better spent engaging in the substance rather than looking for a procedural silver bullet.

This article is for general awareness only and does not constitute legal or professional advice. The law may have changed since this page was first published. If you would like further advice and assistance in relation to any of the issues raised in this article, please contact us today by telephone or email enquiries@sharpepritchard.co.uk.