Westgreen Construction Ltd v Mrs Irina Kiryukhina [2026] EWHC 2189 (TCC) underscores the TCC’s unwavering commitment to the ‘pay now, argue later’ philosophy of the Act. The court disagreed with the defendant that the adjudicator had exceeded jurisdiction and breached natural justice. Further, Mrs Justice O’Farrell DBE clarified that the reimbursement of advance payments (‘AP’) is not a matter of administrative convenience for the employer, but a question of contractual entitlement.  

The Factual and Contractual Matrix

The litigation was primarily driven by the parties’ bespoke amendments to the JCT Standard Building Contract 2016, which effectively ring-fenced the £650,000 AP from the standard interim payment mechanism. These amendments were not merely administrative; they represented a fundamental allocation of risk regarding the Contractor’s liquidity and the employer’s security.

Amended clause 4.7 stipulated that the £650,000 would only be reimbursed upon the occurrence of three specific, exhaustive triggers: (i) agreement and full payment of the final account; (ii) joint issue of the Making Good Defects Certificate and the Final Certificate; or (iii) formal agreement/valuation following contractual termination under Clause 8.12.

In 2025 the Contract Administrator (‘CA’) unsuccessfully attempted to agree to amend clause 4.7 for early release to employer. However, on 25 March 2026, two days before PC was certified, meaning none of the reimbursement triggers under clause 4.7 could have accrued, the CA used clause 4.14 (Gross Valuation) to claw back the £650,000 by omitting it from the Gross Valuation in Interim Certificate 25.

On 7 April 2026, Westgreen referred a dispute to adjudication in respect of the true value of Interim Certificate 25 and specifically the omitted £650,000 AP from the gross valuation. Westgreen contended that the contractual conditions for reimbursement—such as the agreement of a final account or the issue of a Final Certificate—had not yet been met. On 7 May 2026, the adjudicator agreed and ordered Mrs Kiryukhina to pay a balance of £733,062.40. Mrs Kiryukhina failed to pay the full sum and, on 20 May 2026, Westgreen commenced these proceedings.

Jurisdiction

In considering enforcement, the TCC applied the “robust approach” derived from the 2005 proceedings in Carillion v Devonport, prioritizing the speed of the adjudication process over technical legal perfection. The court concluded that the adjudicator remained within the four corners of the dispute, and summary judgment was appropriate.

With jurisdiction, the court’s analysis focused on whether the adjudicator addressed the “essential claim” referred to him. The defendant argued “the Adjudicator went outside the ambit of the dispute and determined other matters not referred to him, namely, the course of dealing by the parties in respect of earlier interim certificates. In doing so, it is said that he thereby exceeded his jurisdiction.” It seems as though this was in respect of the adjudicator considering whether the AP mechanism was “a stand-alone contractual obligation”, separate to payment certification.

The court rejected that the adjudicator has exceeded jurisdiction as the adjudicator’s review of previous certificates was held to be a valid resolution of the referred dispute and since the Referral noted that APs were included in all prior certificates, the adjudicator was entitled to look at the operation of the contract to determine the correct construction of clause 4.14. In finding that the AP should be included in the payment certificates, the adjudicator’s decision stated that: “Indeed, given the terms of the Contract and the duties of the CA to certify payments and the Employer’s duty to make payment upon such certificates issued by the CA it would be surprising if the Parties adopted any other course.”

Natural Justice

With natural justice, the defendant’s first contention was that the dispute referred was the validity of the payment certificate and not whether there was a breach of clause 4.7 of the contract and the adjudicator failed to canvass on that point. Interestingly, the court agreed the breach was not a “necessary element” to determine in order to resolve the dispute referred to adjudication because the issue had been framed as whether the APs were wrongly omitted from Interim Certificate 25.  However, the court found there was no breach of natural justice, because the adjudicator invited comments and it did not form part of the formal decision in terms of relief awarded.

The defendant’s second contention was that it was given inadequate time to respond by way of Rejoinder to a new claim raised in the Reply related to the “course of dealings” point. The claimant argued that the defendant had a full opportunity to address that point in the Response and Rejoinder. The Judge agreed and rejected the defendant’s arguments that there was any breach of natural justice. 

Stays of Execution

The defendant’s application for a stay of execution under CPR 83.7(1) sought to invoke the principles of Wimbledon v Vago [2005] and Gosvenor v Aygun [2018] EWCA. However, the court maintained a high threshold for such stays to preserve the Act’s integrity and found no “special circumstances” to warrant a stay, ordering that the adjudication award be paid immediately.

Strategic Implications for Practitioners

As explained by the contemporaneous message from the CA, the fuel for this conflict was delivered in the drafting of the onerous clause 4.7 and it was ignited by the actions of the CA in the interim valuation. The CA email seeking agreement to amend the onerous terms reads as follows: “The current wording [clause 4.7] provides for the advance payments to be repaid once the final account monies have been paid across by the Employer. This risks placing our client in the position of being owed money by Westgreen, albeit fleetingly. As we discussed and agreed, this was not the intention of the original re-wording of this clause.”

This could have been avoided during pre-contract negotiations by agreeing less onerous terms such as those suggested by the CA: “advance payments would be reclaimed during interim valuations … to ensure that these are fully reclaimed by PC / final account agreement.”

Finally, it is submitted that the email above suggests that the CA has overstepped their mandate to act impartially. This includes both: (i) expressly accepting the interpretation of a contractual provision and subsequently acting against that interpretation; and (ii) performing the client’s role in its attempt to renegotiate more favourable terms.