MillChris Developments Ltd v Waters (2020)

The outcome of this case indicates that the TCC will continue its robust attitude to adjudication and the enforcement of adjudicator’s decisions. Therefore, it is very much business as usual.

The adjudicator issued a timetable which required submissions to be completed by 3 April 2020 and a site visit on 14 April 2020 (presumably with the appropriate measures in place).

MillChris then asked the adjudicator to postpone the adjudication until after the COVID-19 crisis has passed. The adjudicator declined to postpone but did award an extension to the timetable of two weeks.

MillChris applied to the TCC for an injunction prohibiting Waters from proceeding with the adjudication, arguing that the adjudication would be in breach of the rules of natural justice. It had four arguments

1. It did not have time to prepare for the adjudication as a result of the COVID-19 crisis.

2. It did not have time to prepare for the adjudication because it was no longer trading.

3. Its solicitor was self-isolating at home which made obtaining evidence difficult.

4. It would be unfair to have a site visit when none of its representatives were available to attend and there was not enough time to instruct a surveyor to attend the inspection on its behalf.

Mrs Justice Jefford declined to grant the injunction, noting that while the TCC has the power to grant injunctions, this power will be exercised only rarely and in clear cut situations.

The court’s view was that short timescales are part of the adjudication process and that COVID-19 had not exacerbated the situation. There was no reason why papers could not be scanned and sent to the solicitor at home or delivered there.

In the circumstances, the two weeks extension offered by the adjudicator would have allowed MillChris sufficient time to prepare its submissions.
The decision is a further demonstration that the TCC’s commitment to the principles behind adjudication remains unaltered and it will be consistent in its approach to adjudication enforcement.