Adjudicator’s “frolic” leads to enforcement failure: Premier Modular v MTW NHS Trust
The Technology and Construction Court has refused to enforce an adjudicator’s decision worth over £1.6 million after finding that the adjudicator decided the dispute on a basis that neither party had argued. In Premier Modular Ltd v Maidstone and Tunbridge Wells NHS Trust [2026] EWHC 1404 (TCC), the Court considered the limits of an adjudicator’s ability to reach their own conclusions and the circumstances in which doing so may amount to a breach of natural justice.
Background
The dispute arose under an NEC4 Option A contract for the design and construction of a new barn theatre at Maidstone Hospital. Premier Modular Ltd (“Premier”) claimed that the NHS Trust failed to provide a permanent mains water supply in sufficient time for testing and commissioning activities. Premier alleged that the delayed provision of the water supply caused critical delay to the works and entitled it to additional time and money through the NEC compensation event mechanism. The matter was referred to adjudication. The adjudicator found in Premier’s favour and awarded approximately £1.65 million together with other relief. The Trust resisted enforcement of the decision, arguing that the adjudicator had breached the rules of natural justice.
The parties’ positions
Throughout the adjudication, both parties proceeded on the basis that the only “Accepted Programme” under the NEC contract was the original programme contained within the contract documents. Although later revised programmes had been produced, it was common ground that none had been formally accepted by the Project Manager in accordance with the NEC contractual procedures. Premier’s case was that the delayed water supply gave rise to compensation events under clauses 60.1(1), 60.1(14) and 60.1(18) of the contract. The Trust denied that any such compensation event arose and further argued that any entitlement was time-barred because the relevant notification requirements had not been satisfied.
The adjudicator’s decision
The adjudicator did not accept either party’s analysis. Instead, he concluded that one of the later revised programmes had effectively become an Accepted Programme, despite the fact that neither party argued this and despite both parties expressly stating the opposite during the adjudication. Having reached that conclusion, the adjudicator determined that the Trust had failed to provide the water supply by the date shown on that revised programme. This allowed him to find that a compensation event had arisen under clause 60.1(3) of the NEC contract, a contractual provision which neither party had relied upon as the basis of its case. The adjudicator therefore found in Premier’s favour on grounds that had not been advanced by either side.
The Court’s decision
The Court refused to enforce the adjudicator’s decision. Whilst the Court acknowledged the well-established principle that adjudicators are not required simply to choose between the parties’ competing arguments, it emphasised that there are limits to that freedom.
An adjudicator is entitled to reach their own conclusions from the material before them. However, where they intend to determine a dispute on a factual or legal basis that has not been argued by either party, fairness requires that the parties be given an opportunity to address the point before a decision is made.
The Court concluded that the adjudicator had crossed that line. The decision was founded upon a contractual route to recovery that neither party had advanced and which had never been properly canvassed during the adjudication. The Trust therefore had no meaningful opportunity to respond to the case upon which it ultimately lost.
The judge described the adjudicator as effectively creating a new case for Premier and characterised this as the sort of situation where an adjudicator had gone off on a “frolic of his own”. Because that issue went to the very heart of the decision, the breach of natural justice was material and the decision could not be enforced.
Why this decision matters
The judgment serves as an important reminder of the distinction between an adjudicator making a mistake and an adjudicator acting unfairly. The courts will generally enforce adjudicators’ decisions even where there are alleged errors of fact, law or contractual interpretation. The purpose of adjudication remains “pay now, argue later”, and enforcement challenges continue to face a high threshold. However, where an adjudicator determines the dispute on a basis that neither party has advanced and does so without giving the parties an opportunity to comment, the courts may intervene.
The case also highlights the importance of procedural fairness in NEC disputes involving compensation events, Accepted Programmes and notification provisions. Even where an adjudicator believes they have identified a better contractual route to a particular outcome, they must ensure the parties have had a fair opportunity to address it before relying upon it.
How CCC can help
Construction disputes often turn on detailed contractual mechanisms, notice provisions, programme obligations and entitlement under compensation event or variation procedures. A strong claim is not simply about the underlying facts but also about ensuring that the correct contractual route is identified and properly presented.
Contract & Construction Consultants Ltd assists contractors, subcontractors, developers and employers with the preparation, defence and resolution of construction claims. Our team provides support on extension of time claims, loss and expense claims, NEC compensation events, final account disputes, adjudication proceedings and wider dispute resolution strategies. Whether pursuing or defending a claim, early contractual and procedural analysis can often be the difference between success and failure.
