Business As Usual For Adjudication Enforcement

• Published date: 07 July 2020
• Subject Matter: Wealth Management, Real Estate and Construction, Coronavirus (COVID-19), Wealth & Asset Management, Construction & Planning, Government Measures, Operational Impacts and Strategy
• Law Firm: Walker Morris
• Author: Stephen Radcliffe and Carly Thorpe

COVID-19 has caused extensive disruption across the construction industry, raising questions as to the practicality of referring disputes to adjudication and/or enforcing an adjudicator's decision. However, the Technology and Construction division of the Business and Property Courts (the TCC) has made clear in a line of recent case law that it will continue to robustly enforce adjudicator's decisions and that adjudication business should continue as normal despite the COVID-19 situation. It has emphasised that parties cannot seek to rely upon COVID-19 to avoid participating in an adjudication or complying with an adjudicator's decision. Set out below is a summary of the recent cases and our practical tips for managing an adjudication during lockdown.

Millchris Developments Ltd v Waters

Millchris sought an application for an interim injunction prohibiting Waters from proceeding with an ongoing adjudication. The adjudication timetable required submission of evidence by 3 April 2020, and a site visit on 14 April 2020. On 26 March 2020, Millchris asked the Adjudicator to suspend the adjudication until the government lockdown measures were lifted, stating that it was not possible to comply with the adjudication timetable during the lockdown. The Adjudicator declined to suspend the adjudication and Millchris then made an application to the TCC for an interim injunction on the grounds that, if allowed to proceed, the adjudication would breach natural justice as Millchris would not have sufficient time to prepare its case.

The TCC declined to grant the requested injunction. The Judge concluded that there was insufficient evidence to establish why the relevant information could not be transmitted by Millchris electronically despite the lockdown measures. It was not necessary for the parties to meet in person and in respect of a site visit, it was noted that the parties had no right to be present at a site visit in any event, and arrangements could have been made for the site visit to have been recorded, or for specific points to have been brought to the adjudicator's attention prior to the visit.

In short, the Judge considered that Millchris' reasons for not being able to obtain evidence during the adjudication timetable had little to do with the COVID-19 restrictions and was in fact more to do with other difficulties that Millchris was experiencing.

The TCC confirmed that, despite the highly unusual circumstances presented by COVID-19, parties are expected to...