Adjudication: TCC refuses enforcement in Premier Modular

We don’t often see enforcement of an adjudicator’s decision successfully defended on grounds of a breach of natural justice, but it happened in the recent case of Premier Modular Limited v Maidstone and Tunbridge Wells NHS Trust [2026] EWHC 1404 (TCC).

The Technology and Construction Court (TCC) found that the Adjudicator had gone off on a “frolic”, and made his decision on a basis neither party had advanced or had a fair opportunity to address.

The facts

The contract between Premier and the Trust (the Contract) is based on NEC4 Option A and relates to the design and construction of a theatre at Maidstone Hospital.

In the adjudication, Premier claimed that the Trust were required to provide a permanent water mains supply (in order that Premier could test and commission its work) by 30 October 2023 but did not do so until 20 February 2024. This caused delay and a compensation event to arise under the Contract. In response, the Trust argued that there was no requirement for the water supply to be made available by a particular date.

The Adjudicator found in favour of Premier and awarded c.£1.6 million. The Trust did not pay and so Premier commenced enforcement proceedings in the TCC and applied for summary judgment. The Trust defended those proceedings, alleging that the Adjudicator had breached natural justice in reaching his decision on the following grounds:

1. Ground 1: The Adjudicator’s central decision (that there was a compensation event) was based on a contractual argument that had not been put forward by either party, and which neither party had been given the opportunity to address. The Adjudicator found that a compensation event had arisen under clause 60.1(3) of the Contract, whereas Premier had alleged that a compensation event had arisen under clauses 60.1(1), (14) and (18).
2. Ground 2: The Adjudicator failed to address one of the Trust’s defences, in that Premier had failed to notify a compensation event under the Contract and so Premier’s claim was now, in any event, time-barred. The Adjudicator found that there was no time bar.
3. Ground 3: The Adjudicator found that the Accepted Programme had been updated, which was not part of the adjudication and was contrary to the clear position of both parties that the Accepted Programme had not been updated. The Accepted Programme did not require the Trust to provide a permanent water supply by any particular day.

Judge’s consideration of Grounds 1, 2 and 3

Key extracts of Adrian Williamson KC’s Judgment are as follows:

Grounds 1 and 3

“[..] that looks very much like an adjudicator going off on a frolic of his own, that is wishing to decide a case upon a factual or legal basis which has not been put forward by either side, without giving the parties an opportunity to comment. Indeed, the Adjudicator here seems to have thought that the case which he devised under clause 60.1(3) provided a solution which was “that simple”, even though it had not occurred to either party. He appears, therefore, to have decided a key point on a factual or legal basis that had not been argued or put forward in the submissions made to him.” 
 
“It is, of course, correct that an Adjudicator is not obliged to decide a case only by accepting the submissions of one party or the other. But if he is to depart from the submissions of both parties, he must ensure that the issues have been fairly canvassed. This did not happen here. [..].”

“In summary, the Adjudicator determined that there was a compensation event within the meaning of clause 60.1(3) because the Trust had not provided the water main by the dates set out in the revised programme which neither party said was an Accepted Programme. By contrast, the Accepted Programme contained no such dates. This startling conclusion was clearly material to the Decision, and it should have been put to the parties for comment. 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.” 

Ground 2

“The Adjudicator plainly addressed himself to this issue [..]. It may be that, in doing so, he misunderstood the Trust’s case or confused the contractual regime for Early Warnings with the provisions of clause 61.3. But that is not a breach of the rules of natural justice. It is not for the court, in enforcement proceedings, to pick over a Decision and consider which parts are correct and which are more doubtful.”

Decision

Adrian Williamson KC held that the Trust had a real prospect of succeeding on its contention that the Adjudicator’s decision was arrived at in breach of the rules of natural justice and therefore dismissed Premier’s application for summary judgment.

He said that in so concluding, he “had very much in mind the guidance from the Court of Appeal in Carillion Construction Limited v Devonport Royal Dockyard Limited [2006] BLR 15 that it is for “the courts to respect and enforce the adjudicator’s decision unless it is plain that ... the manner in which he has gone about his task is obviously unfair. It should be only in rare circumstances that the courts will interfere with the decision of an adjudicator”. However, in my view, this is one of those rare cases where there has been obvious unfairness [..]. I have also had very much in mind the difficult task which adjudicators face in dealing with substantial disputes in very short order, a point also emphasised in Carillion. However, I think that this factor weighs more heavily in favour of the enforcement of a decision where it is said that a point has been overlooked or misunderstood. In the present case, the Adjudicator di not neglect a matter under pressure of time. Rather, he sought to create a case for PML which PML had not made and with which the Trust had no proper opportunity to deal, even by the hectic standards of adjudication.”

A shift in approach?

Premier is the latest of several recent cases where the TCC has refused to enforce an adjudicator’s decision:

• LMND Group Ltd v John Henry Group Ltd (unreported): Steven Davies HHJ dismissed the application for summary judgment on the basis that the adjudicator’s rejection of an estoppel by convention defence in reliance on arguments and authority not advanced by either party (without inviting submissions) amounted to a material breach of natural justice.
• Darchem Engineering Ltd v Bouygues Travaux Publics & Anor [2026] EWHC 220 (TCC): Mr Justice Constable dismissed the application for summary judgment on the basis that the referring party in the adjudication was not a party to the relevant contract and therefore the adjudicator did not have jurisdiction.
• High Tech Construction Limited v WLP Trading and Marketing Limited [2026] EWHC 152 (TCC): Mr Justice Constable dismissed the application for summary judgment on the basis that there was a real prospect that at trial the Defendant would succeed in its argument that the Adjudicator was appointed pursuant to a contract which did not exist, and therefore did not have jurisdiction. An argument that the decision was procured by fraud was felt to have some merit. This case is likely to be fact specific.

Taken together, these judgments may lead some to question whether the TCC is becoming more receptive to challenging adjudicator’s decisions, but we consider it would be going too far to describe this as a clear shift in approach. In Premier, Adrian Williamson KC was clear in that the TCC will only interfere in rare circumstances. Further, the recent cases are fact-specific and turn on orthodox, well-established exceptions to enforcement. Premier and LMND concerned material breaches of natural justice, where the adjudicator decided an important point on a basis not advanced by either party. Darchem and High-Tech Construction concerned jurisdictional objections, including whether the referring party was entitled to adjudicate at all and whether the relevant contract existed.

These cases therefore do not signal a weakening of the TCC’s pro-enforcement stance. Rather, they confirm that the court will continue to enforce adjudicators’ decisions robustly, but not at any cost. Where an adjudicator materially departs from the issues referred, decides a case on an unargued basis, or lacks jurisdiction, the court remains willing to intervene.

For parties resisting enforcement, the message is that the threshold remains high: ordinary errors of fact, law or reasoning will not be enough. For referring parties, the lesson is to ensure that the adjudication is properly framed and that the adjudicator’s jurisdiction is secure. For adjudicators, the warning is clear: if a new route to a decision emerges, the parties must be given a fair opportunity to address it.

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