Since the passing of the Construction Act in 1996, a party to a construction contract has had the  right to refer a dispute to adjudication “at any time.” Since then, the Courts have been highly unwilling to restrain a party from pursuing that right.  For example, in Dorchester Hotel Ltd v Vivid Interiors Ltd [2009] EWHC 70 (TCC), the referring party submitted a claim comprised of  37 lever arch files a few days before Christmas for an adjudication. Despite being an overwhelmingly large number of documents to review during the festive time, this was deemed not sufficiently unfair to the responding party for the Court to stop the adjudication.

So, what about four adjudications launched in 13 days? Would that be “unreasonable” and “oppressive” enough for the Court to intervene? That was the question put before the Court in Beck Interiors Ltd v Eros Ltd [2024] EWHC 2084 (TCC).

What happened?

The case involved a contract between Eros and Beck for fit-out works at Mandarin Oriental Residences in Mayfair. The parties soon became embroiled in a series of adjudications and court actions. At one point, there were six separate adjudications ongoing between the parties—four of them commenced by Eros in the space of just 13 days.

Beck contended that launching four adjudications in such quick succession was oppressive and unreasonable, on the basis that Beck could not fairly represent itself in all of the adjudications at once. Beck applied to the TCC seeking an injunction to prevent Eros from issuing any further adjudications without the Court’s consent, and for the adjudication notices it had already served to be withdrawn.

What did the Court decide?

• A party should not be prevented from pursuing its statutory right to refer a dispute to adjudication except in the most exceptional circumstances.
• This case was far from exceptional as the Judge had seen nothing which could be regarded as “unconscionable, unreasonable or oppressive in Eros’ approach in the individual adjudications”.
• Yes, there is an inevitable burden on hard-pressed lawyers in responding to multiple adjudications all at once, but this is the product of the right to adjudicate at any time, not an abuse of it.
• The bigger risk would lie in opening the door to the court policing adjudication which is not the intention of the process.

What can we learn from this?

Don’t expect the Court to intervene in adjudications. They will do so only in extremely rare cases, where the Adjudicator clearly lacks jurisdiction, or where it is “unreasonable and oppressive” to pursue the adjudication—but that is a very high bar indeed.

Simply? The statutory right to adjudicate “at any time” means exactly that. Launching multiple adjudications is part of that right, regardless of the strain it puts on responding teams.

 

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This article contains information of general interest about current legal issues, but does not provide legal advice. It is prepared for the general information of our clients and other interested parties. This article should not be relied upon in any specific situation without appropriate legal advice. If you require legal advice on any of the issues raised in this article, please contact one of our specialist construction lawyers.

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