The Technology and Construction Court has delivered an important reminder of the limits of an adjudicator’s powers in Premier Modular Ltd v Maidstone and Tunbridge Wells NHS Trust [2026] EWHC 1404 (TCC).
While the courts remain strongly supportive of adjudication and generally enforce decisions even where errors of fact or law may have occurred, this case demonstrates that enforcement will be refused where an adjudicator crosses the line from deciding the parties’ dispute to creating an entirely new case of their own.
Background
Premier Modular Limited (“PML”) was engaged by Maidstone and Tunbridge Wells NHS Trust (“the Trust”) to construct a new theatre block under an amended NEC4 contract.
A dispute arose concerning the provision of a permanent mains water supply. PML contended that the Trust was required to make permanent water available by 30 October 2023 to enable testing and commissioning activities. According to PML, the water supply was not available until February 2024, causing delay and additional cost.
The Trust accepted responsibility for providing the water supply but denied that there was any contractual obligation to provide it by a specific date.
PML referred the dispute to adjudication, arguing that the Trust’s actions gave rise to compensation events under NEC clause 60.1(1), 60.1(14) and 60.1(18).
The Trust resisted the claim on two principal grounds:
- No compensation event had arisen under the clauses relied upon by PML; and
- Even if a compensation event had occurred, PML had failed to notify it in accordance with the condition precedent contained in clause 61.3.
A further issue concerned the relevant programme against which any delay should be assessed. Both parties agreed that the only “Accepted Programme” under the contract was the original programme incorporated into the contract. Although later programme revisions existed, none had been formally accepted under the NEC contractual mechanism.
The Adjudicator’s Decision
During the adjudication, the adjudicator sought clarification from the parties and referred to clause 60.1(3), which concerns circumstances where:
“The Client does not provide something which it is to provide by the date shown in the Accepted Programme.”
Neither party subsequently advanced a case based on clause 60.1(3).
Both parties also confirmed that the Accepted Programme had never been updated.
Despite this, the adjudicator ultimately found:
- A later programme revision had become an Accepted Programme;
- The Trust was required to provide the water supply by a date shown in that programme;
- The failure to do so constituted a compensation event under clause 60.1(3); and
- There was no effective time bar preventing recovery.
As a result, PML was awarded approximately £1.7 million.
Enforcement Proceedings
When the Trust refused to pay, PML commenced enforcement proceedings seeking summary judgment.
The Trust argued that the adjudicator’s decision was unenforceable because it had been reached in breach of the rules of natural justice.
Three grounds were advanced:
- The adjudicator decided the dispute on a contractual basis never argued by either party.
- The adjudicator failed properly to address the Trust’s condition precedent defence.
- The adjudicator found that the Accepted Programme had been updated despite both parties agreeing that it had not.
The Court’s Analysis
Deputy High Court Judge Adrian Williamson KC began by reaffirming the well-established principle that adjudication decisions are ordinarily enforced.
Referring to authorities including Cantillon v Urvasco and Carillion v Devonport Royal Dockyard, the Court emphasised that adjudicators operate under severe time constraints and that unsuccessful parties should not be encouraged to resist enforcement through technical challenges.
However, the Court also reiterated an equally important principle: an adjudicator cannot determine a dispute on a factual or legal basis that has not been advanced by the parties without first giving them an opportunity to comment.
The Court focused particularly on the concept described in Cantillon as an adjudicator going off on a “frolic of his own”.
That, the Court concluded, was precisely what had occurred here.
Why the Decision Was Unfair
The fundamental difficulty for PML was that neither party had argued:
- That clause 60.1(3) provided the relevant compensation event; or
- That the later programme revision constituted an Accepted Programme.
Indeed, both parties had expressly stated the opposite.
The Court rejected the suggestion that the adjudicator’s brief reference to clause 60.1(3) in his clarification questions was sufficient to alert the parties to the possibility that he intended to decide the entire dispute on that basis.
The judge noted that the clarification request merely sought confirmation of whether a particular programme revision was an Accepted Programme. It did not invite submissions on whether clause 60.1(3) formed the foundation of PML’s claim.
The first time the Trust became aware that the adjudicator intended to determine the dispute in this way was when it received the final decision.
In a striking passage, the Court concluded that the adjudicator had effectively:
“invented a case for PML which he considered to be superior to that which they actually advanced.”
This was not simply a misunderstanding of evidence or a mistaken interpretation of the contract. Rather, it represented a material departure from the case presented by either party.
The Importance of Natural Justice
The judgment provides a useful illustration of the distinction between:
- An adjudicator making an error within the scope of the dispute; and
- An adjudicator deciding a dispute on an entirely new basis that has not been properly ventilated by the parties.
The former will usually be enforced.
The latter may not.
The Court accepted that adjudicators are entitled to reach conclusions different from those urged by either party. However, where they intend to rely on a decisive legal or factual basis that has not been argued, they must first ensure that the parties have had a fair opportunity to address it.
Failure to do so risks a finding that the decision was reached in breach of natural justice.
Key Lessons
This decision offers several practical lessons for adjudicators and parties alike:
For Adjudicators
- Avoid deciding disputes on legal or factual grounds that have not been argued.
- If a new point appears potentially decisive, invite submissions before relying upon it.
- Ensure that any departure from the parties’ pleaded cases has been properly canvassed.
For Referring Parties
- Define carefully the contractual basis of any claim.
- Do not assume an adjudicator will identify alternative routes to recovery.
- Be alert to clarification requests that may indicate a shift in the adjudicator’s thinking.
For Responding Parties
- Natural justice challenges remain difficult.
- However, where an adjudicator truly determines the dispute on a basis neither party has advanced, enforcement may be successfully resisted.
Conclusion
The TCC’s decision in Premier Modular is a rare example of a successful natural justice challenge to adjudication enforcement.
The judgment does not signal any retreat from the courts’ longstanding support for adjudication. Indeed, the Court repeatedly emphasised that enforcement should only be refused in exceptional circumstances.
What makes this case unusual is the judge’s conclusion that the adjudicator did more than merely misunderstand the parties’ submissions. He effectively created an entirely new route to success for the claimant and decided the dispute on that basis without giving the defendant an opportunity to respond.
The case therefore serves as a valuable reminder that, while adjudicators enjoy considerable freedom in reaching their conclusions, they must still decide the dispute that the parties have brought before them, not one of their own making.