Clerkenwell v HG Construction – TCC Reinforces the Importance of Raising All Defences During Adjudication
The Technology and Construction Court (TCC) has once again demonstrated the courts’ robust approach to enforcing adjudicators’ decisions in Clerkenwell Lifestyle (UK) Ltd v HG Construction Ltd [2026] EWHC 1406 (TCC). The judgment provides valuable guidance on two important issues regularly encountered in construction disputes:
- whether email negotiations can amount to a legally binding agreement varying a construction contract; and
- when an adjudicator’s decision may be challenged on the basis of natural justice.
Background
The dispute arose under an amended JCT Design and Build Contract 2016 relating to the construction of a hotel and affordable housing development in Clerkenwell, London.
During the project, HG Construction sought extensions of time due to a number of delaying events, including adverse weather, strikes, Covid-related disruption and material supply issues. Following discussions between the parties, the Employer’s Agent issued formal Extension of Time (EOT) notices extending the contractual completion dates.
Further delays subsequently occurred, resulting in practical completion being achieved significantly later than the revised completion dates. The Employer deducted substantial liquidated damages, leading to adjudication.
The adjudicator undertook a comprehensive delay analysis and awarded HG further extensions of time, but calculated those extensions from the original contractual completion dates rather than the earlier revised dates.
HG resisted enforcement of the adjudicator’s decision, arguing that an exchange of emails in February 2023 constituted a binding agreement revising the completion dates and that the adjudicator had failed to consider this defence.
The Court’s Decision
Mrs Justice Jefford rejected HG’s arguments and enforced the adjudicator’s decision in full.
A defence must actually be raised
One of the most significant aspects of the judgment concerns the scope of natural justice in adjudication. HG argued that the adjudicator had failed to consider a material defence. The Court disagreed, holding that the defence had never actually been advanced during the adjudication itself. Although HG referred to the relevant email correspondence within its submissions, it never clearly argued that those emails created a separate legally binding agreement which fixed the revised completion dates. The Court confirmed that an adjudicator cannot be criticised for failing to determine a defence that was never properly put before them. This serves as an important reminder that parties must ensure every legal argument upon which they intend to rely is expressly pleaded during the adjudication. Courts will not permit parties to raise new legal arguments for the first time during enforcement proceedings.
“Agreed” does not necessarily mean a binding agreement
The judgment also provides useful guidance on contractual interpretation. HG relied heavily upon wording within the email correspondence stating that the parties had “agreed” a 12-week extension of time. However, the Court found that the correspondence did not create a standalone contractual agreement varying the completion dates. Instead, the emails simply reflected the parties’ agreement that the Employer would exercise the contractual extension of time mechanism contained within the JCT contract. When viewed in its full commercial context, the parties were following the existing contractual process rather than creating an entirely new agreement outside the contract. The Court also noted that if parties genuinely intend to vary important contractual provisions such as completion dates, clear and formal documentation is generally expected.
A high threshold remains for resisting enforcement
The decision continues the TCC’s long-established policy of enforcing adjudicators’ decisions unless there is a genuine jurisdictional defect or material breach of natural justice. The Court reaffirmed that adjudication is intended to provide a speedy, temporarily binding resolution of disputes. Allegations that an adjudicator reached the wrong answer will not justify refusing enforcement where the adjudicator considered the dispute that had been referred.
Practical Lessons
The judgment provides several practical reminders for parties involved in construction projects:
- Clearly articulate every defence during adjudication rather than assuming it is implicit from the documents.
- Do not rely on informal email exchanges to vary key contractual provisions unless there is a clear intention to create legally binding obligations.
- Continue to follow the contractual mechanisms for extensions of time and contractual amendments wherever possible.
- Remember that enforcement proceedings are not an opportunity to advance new legal arguments that were not properly raised before the adjudicator.
How CCC Can Help
Adjudication frequently turns not only on the underlying merits of a dispute, but also on how those arguments are presented. A potentially strong defence can easily be lost if it is not clearly articulated within the adjudication process. At Contract & Construction Consultants (CCC), we regularly advise employers, contractors and subcontractors on extension of time claims, delay and disruption, liquidated damages, payment disputes and adjudication proceedings. Our team assists clients in preparing robust submissions, identifying all available contractual and legal arguments, and developing comprehensive strategies both before and during adjudication to maximise the prospects of a successful outcome. Whether you are pursuing or defending an adjudication, obtaining early specialist advice can often prove decisive in protecting your contractual position.
