Severing an Adjudicator’s Decision: Construction Industry

Adjudications are a quick method of resolving construction disputes and enabling the parties to move on with a continuing project, or simply put the past behind them and focus upon new projects. They are however occasionally challenged when one of the parties believe that the law has not been properly applied to the circumstances. As the way of challenging or enforcing the decision is through the Court system, it is open for the parties to consider their options in settling for the outcome reached or opening an issue up to further scrutiny of a Judge in the Court setting.

In Willow v MTD Contractors 2019 EWHC 1591, the Court allowed severance of part of an Adjudicator’s Decision. Ordinarily, a Court would enforce an Adjudicator’s decision even if the decision was wrong, provided that an Adjudicator acted in accordance with the rules of natural justice and acted within the Adjudicator’s jurisdiction. With a couple of exceptions to this rule, it has been possible for this to be relied upon quite freely. This rule had therefore deterred many from challenging Decisions reached on the basis that even if wrong, the Court was likely to uphold the overall Decision.

In allowing the severance in Willow, the Court acknowledged that the part containing the flaw could safely be severed without affecting the other parts of the Adjudicator’s Decision. By removing the offending part, the balance of the Decision still fulfilled the above criteria and was appropriate.

There have been a number of cases where the Technology and Construction Court (TCC) has warned parties not to issue challenges to the enforcement of an Adjudicator’s decision; so the Court’s indication that the TCC should be more willing to order severance of an Adjudicator’s decision following this particular case was a shift in emphasis and serves to play a part in a party’s decision on whether to take a matter forward to Court for review if they are unhappy with an Adjudicator’s decision.

If you are looking for advice regarding a dispute, contact our Dispute Resolution Team today on 01604 828282 / 01908 660966 or at litigation@franklins-sols.co.uk.