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Mek Mesfin is successful in Adjudication enforcement in the TCC

In Willmott Partnership Homes Ltd v Bethel Retirement Villages – Herne Bay Court Ltd (2017) TCC, Mr Justice Fraser reiterated the well-known principle that absent a valid complaint regarding an adjudicator’s jurisdiction or the occurrence of a material breach of natural justice, an adjudicator’s decision will be enforced.

The Claimant (WPHL) had been contracted by the Defendant (Bethel) to provide pre-construction services concerning the construction of a retirement village in Kent. WPHL served a payment notice under the Local Democracy, Economic Development and Construction Act 2009, to which Bethel failed to serve a payless notice in response. A dispute crystallised which WPHL referred to Adjudication. The Adjudicator found the sum of £705,558 due from Bethel to WPHL.

Upon WPHL’s summary judgment enforcement application, Bethel argued (1) that it was a breach of natural justice for the Adjudicator to order payment of such a large sum where the operation of complex payment rules was in dispute, and (2) that the Adjudicator had failed to exhaust his jurisdiction by not asking why a building contract had not been entered into by the parties following the pre-construction works.

Fraser J reiterated that natural justice comprised two aspects; first, that the parties were entitled to know the case against them, and secondly, that they were entitled to have that dealt with by an impartial tribunal. Further, Fraser J held that neither of Bethel’s arguments raised issues of natural justice: the payment provisions in the Construction Act and their consequences had been enacted by Parliament and an Adjudicator ordering payment pursuant to them was not acting breach of natural justice. As to Bethel’s jurisdictional argument, Fraser J held that no issue had been taken as to the Adjudicator’s jurisdiction nor any reservation of rights made during the Adjudication itself and it was too late to raise those matters upon the enforcement application. Fraser J held that, in any event, it was obvious and clear that the Adjudicator had had jurisdiction and answered the question that was put to him.

Mek Mesfin represented the successful Claimant, Willmott Partnership Homes Limited, and was instructed by its in-house solicitor Mr Simon Fletcher.

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