Council defeats claim for summary judgment for £327k after award by adjudicator

A district council has successfully persuaded a Technology and Construction Court (TCC) judge to dismiss a claim for summary judgment against the authority to enforce an adjudicator’s award for more than £327,000.

The case of BSW Building Services v Adur District Council [2018] 10 WLUK 486 was heard by Mr Roger Stewart QC sitting as Deputy Judge of the TCC.

Clifford Darton of Ely Place Chambers appeared for Adur, instructed by Joanne Lee from the authority.

Commenting on the case, Ely Place said: “Accepting Adur’s arguments and applying the decision in Cantillon Ltd v Urvasco Ltd [2008] EWHC 282 (TCC), the Judge held that the adjudicator had acted in breach of natural justice when he decided the adjudication on a point on which Adur had not been allowed to make submissions.

“The Adjudicator had found that Adur was liable to pay the sum claimed on account of RPI increases notwithstanding that the parties’ contract did not, as a matter of construction, allow for such increases. In the Adjudicator’s view Adur had ‘waived’ the relevant terms and also a Non-Oral Variation Clause which precluded such a waiver. This view had not been advanced by the claimant in the adjudication and was one to which Adur submitted there was a ready answer following the Supreme Court decision in MWB Business Exchange Centres Ltd v Rock Advertising Ltd [2018] 2 W.L.R. 1603.”

Ely Place added that Mr Roger Stewart QC, in his extemporary judgment, had found that that whilst the adjudicator had been the sole determiner of the legal and factual issues that had been referred to him this extensive jurisdiction had not allowed him to go on what the judge called a “frolic of his own” and act in breach of natural justice.

The set added that “in an area of law in which summary judgment is almost always granted”, this was the second application that Clifford Darton had defeated this year.