The recent judgment in Construction Muzzy Limited v Davis Construction (South East) Limited [2025] EWHC 2258 (TCC) considers common challenges in adjudication enforcement relating to jurisdiction and natural justice. Davis resisted enforcement on the grounds of (i) unsolicited submissions; (ii) ‘substantially the same’ dispute; and (iii) predetermination in serial adjudications.

Muzzy was engaged by Davis under two separate sub-contracts to perform “groundworks” and “drainage works” at a construction site in Conder, Epping, Essex. When disputes arose over payments, Muzzy initiated separate ‘notified sum’ adjudications for each sub-contract and the same adjudicator, Mr. Leigh Belasco, was appointed for both proceedings.  

In Adjudication 1, the Groundworks Adjudication, the adjudicator decided that Davis owed Muzzy the sum of £98,533.44 plus VAT. In Adjudication 2, the Drainage Adjudication, the adjudicator decided that Davis owed Muzzy the sum of £102,966.45 plus VAT. Following Davis’s failure to pay the awarded sums, Muzzy commenced enforcement proceedings in the TCC seeking summary judgment for £261,191.44.

Unsolicited Submission in Adjudication 1

Davis contended that the adjudicator committed a serious breach of natural justice by placing “significant reliance” on an “unsolicited surrejoinder” from Muzzy. Davis argued that this document introduced new arguments to which it had no opportunity to respond. District Judge Baldwin dismissed the challenge as “fanciful”, and said that the “undoubted intended and actual function of the Surrejoinder was not to steal an unfair advantage” but rather to afford Muzzy a “succinct opportunity to respond.”

Substantially the Same Dispute

For some context on the principle of ‘substantially the same’ dispute, in Quietfield Ltd v Vascroft Construction Ltd [2006] EWHC 174 (TCC), the judge stated: “If the contractor makes successive applications for extension of time on the same grounds, the architect or contract administrator will, no doubt, reiterate his original decision. The aggrieved party cannot refer this matter to successive adjudications. He is debarred from doing so by paragraphs 9 and 23 of the Scheme and section 108(3) of the 1996 Act …”.

Davis argued that the dispute referred to Adjudication 2 was “substantially the same” as the dispute in Adjudication 1 because both the causes of action (failure to serve a valid payless notice) and the referral notices were nearly identical. The judge made short shrift of this argument stating it was “topsy turvy” to apply the principle of ‘substantially the same’ to multiple contracts and stated that Davis was seeking to stop a “successful Claimant running the same argument in a different contract” and prevent the “aggrieved winner from pressing home its advantage.”

Predetermination in Serial Adjudication

In Lanes Group Plc v Galliford Try Infrastructure Ltd (t/a Galliford Try Rail) [2011] EWCA Civ 1617, Jackson LJ said that ‘predetermination’ is sometimes “treated as a species of bias“, though it is “conceptually somewhat different” and it arises when a decision maker reaches a final conclusion before being in possession of all the relevant evidence and arguments.

The test of apparent bias is also applied in cases of apparent predetermination. In Porter v McGill [2001] UKHL 67 [2002] 2 AC 357, Lord Hope formulated the test for apparent bias as “whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.” In Gillies v Secretary of State for Work and Pensions [2006] UKHL [2006] 1 All ER 731, Lord Hope expanded that this observer can be assumed to have access to all the facts, is neither complacent nor unduly sensitive or and is able to distinguish between what is relevant and what is irrelevant.

Davis asserted that the adjudicator approached Adjudication 2 without “fresh eyes and an open mind” and this amounted to predetermination and a breach of natural justice. Davis pointed to the adjudicator’s “frankness” in acknowledging that with similar facts to Adjudication 1, he would “expect a similar result.” To put those words in context, the judge cited the following excerpts from the adjudicator’s decision:

“Findings

2.5 I have reviewed Muzzy’s position, and find (i) the Application was a valid payment application (no point has been taken by Davis to explain otherwise), (ii) Davis failed to provide a payment and/or pay less notice (or if it did, it has failed to disclose the same due to its non-participation) and (iii) that Muzzy’s Application became the sum due in default with reference to clause 7.10, having clearly been served correctly and in accordance with the Sub-Contract.

2.6 Whilst Davis did fully participate in Adjudication 1, the facts are very similar in that Adjudication, and I am satisfied that it is reasonable to expect a similar result here. If there were any factual differences that would in some way differentiate this adjudication, then Davis’ refusal to participate means that such facts have not been put to me. That was Davis’ prerogative.”

The judge did not feel obliged to apply the ‘informed observer’ test. He stated that Davis had made a conscious decision not to participate and in the absence of any contrary evidence or submissions, the adjudicator was duty-bound to assess the unopposed evidence before him and that it was evident that the adjudicator had properly reviewed the materials before reaching his decision. The court therefore found no more than a “fanciful prospect” of proving predetermination and granted summary judgment.

Key Takeaways

The judgment provides clarity that disputes arising from separate contracts cannot be considered “substantially the same” for jurisdictional purposes, even if the underlying facts, contractual terms, and causes of action are nearly identical.

On predetermination, as was posited in the judgment, it is standard practice for the same adjudicator to be appointed in similar disputes between the same parties. This might lead to some issues such as an adjudicator having preconceptions on the matters in dispute, however, the courts appear to be supportive of the practice and its inherent advantages such as cost savings to the parties. Perhaps more importantly, the practice likely promotes a more consistent outcome, one which the parties are more inclined to accept as final.