In the TCC, the judicial tide almost always flows toward enforcement. However, the judgment in Premier Modular Ltd v Maidstone and Tunbridge Wells NHS Trust [2026] EWHC 1404 (TCC) stands as a rare and significant bulkhead against procedural overreach and a breach of the rules of natural justice. The Court’s refusal to grant summary judgment to enforce an adjudicator’s decision for “obvious unfairness” highlights the limits of judicial deference. While adjudicators are permitted to be robust and are often under extreme time pressure, they cannot actively create a new case and deprive a party of the opportunity to deal with it.

Natural Justice in Construction Adjudication

The high threshold for resisting enforcement is necessary to protect the statutory intent of providing an interim resolution to construction disputes. However, this robustness is not a license for procedural anarchy. The core principles of natural justice in this context are derived from Cantillon Ltd v Urvasco Ltd [2008] EWHC 282 (TCC) at paragraph 57:

The Factual Background

The underlying dispute concerned the provision of a permanent mains water supply for a new surgical theatre at Maidstone Hospital. Premier Modular Ltd (‘PML’) asserted there was a strategic requirement for this supply by 30 October 2023 to enable testing and commissioning. The Trust did not deliver the supply until 20 February 2024. While the Trust admitted responsibility for the supply, it maintained that no specific contractual date for delivery had been established.

The status of the Accepted Programme was common ground between the parties during the adjudication. The only Accepted Programme was the baseline programme as the PM had not accepted any revisions. That programme did not include a date to provide a water supply, that only manifested in the revised ‘unaccepted’ programmes.

In its Referral, PML sought to establish a Compensation Event by relying on the following NEC4 Option A clauses: (i) 60.1(1) Project Manager instructions changing the Scope; (ii) 60.1(14) Events stated as Client’s liabilities; and (iii) 60.1(18) General breaches of contract by the Client. Critically, PML’s Referral did not rely on clause 60.1(3), a failure to provide something by a date shown on the Accepted Programme.

However, although PML did not consider that clause 60.1(3) was applicable, it did place reliance on the unaccepted programmes. PML submitted that it made considerably more sense to base the assessment on the programme as it actually was and cited Northern Ireland Housing Executive v. Healthy Buildings (Ireland) Limited [2017] NIQB 43 to persuade the adjudicator not to “grope around in the dark”.

The adjudicator awarded PML the sum of £1.7 million and the Trust resisted enforcement on the grounds that the adjudicator reached his decision on a contractual basis not raised by either party – effectively, “inventing a case” for PML.

The Adjudicator’s Frolic

The defence argued the potential relevance of clause 60.1(3) was sufficiently canvassed during the adjudication in the adjudicator’s query list, where the adjudicator invited the parties to clarify whether Rev. 2 Programme (not the programme he frolicked on) was an Accepted Programme for the purposes of clause 60.1(3). It asserted that both parties therefore had a reasonable opportunity to consider and address the relevance of clause 60.1(3). However, the Court was not satisfied that the parties were fairly canvassed. It said that the first the Trust knew of the ‘clause 60.1(3)’ case was when they received the Decision.

As to the adjudicator’s finding that the Rev. 3 Programme was to be the Accepted Programme, the Court stated: “… it is true that PML’s expert (and PML) argued that the assessment of delay should be based on a later unaccepted programme rather than the Accepted Programme. However, that does not really address the point … [that] the Adjudicator was founding his Decision upon a programme which neither party alleged to be an Accepted Programme.”

Adrian Williamson KC concluded that this was clearly material to the Decision, and it should have been put to the parties for comment. He said: “It was a breach of the rules of natural justice not to do so: the Adjudicator went off on a ‘frolic’ by, in effect, inventing a case for PML which he considered to be superior to that which they actually advanced.”

Discussion – More than Canvassing

The Court found the adjudicator’s query was not fairly canvassing the Parties as it did not address the correct programme and only in passing referred to the transgressing clause. However, what if the adjudicator had properly canvassed the parties on this occasion and proceeded to ignore the responses.

Where both parties expressly reject an alternative view, as was the case here, by proceeding with the alternative regardless, the adjudicator could still fall foul of natural justice and/or jurisdiction. In Primus Build Ltd v Pompey Centre Ltd [2009] EWHC 1487 (TCC) [40]:

“But where, as here, an adjudicator considers that the referring party’s claims as made cannot be sustained, yet he himself identifies a possible alternative way in which a claim of some sort could be advanced, he will normally be obliged to raise that point with the parties in advance of his decision. It seems to me that that principle must apply a fortiori in circumstances where the document from which the alternative approach is to be derived, is a document which the adjudicator was told by the parties to ignore.” (emphasis added)