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. Clerkenwell Lifestyle (UK) Ltd (“Clerkenwell”) engaged HG Construction Ltd (“HG Construction”) as contractor under the building contract.
During the project, HG Construction sought extensions of time (“EOTs”) in respect of various project delays. Following correspondence between the parties, the Employer’s Agent, Avison Young, set out proposals for extensions of time in February 2023 and subsequently issued a formal EOT notice revising the Sectional Completion Dates under the contractual machinery. HG Construction later contended that the February 2023 email exchange had created a separate binding agreement revising those dates, a position ultimately rejected by the TCC.
Further delays followed, and practical completion was achieved significantly later than the revised completion dates. Clerkenwell deducted substantial liquidated damages, leading to adjudication.
The adjudicator undertook a detailed delay analysis and calculated the extensions of time by reference to the original contractual completion dates, rather than treating the February 2023 revised dates as a separate contractual baseline. HG Construction resisted enforcement of the adjudicator’s decision, arguing that the February 2023 email exchange constituted a binding agreement revising the completion dates and that the adjudicator’s failure to address that defence amounted to a breach of natural justice.
The Court’s Decision
Mrs Justice Jefford rejected HG Construction’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 Construction 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 Construction 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 Construction 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 well 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. An allegation that the adjudicator reached the wrong answer will not, of itself, justify refusing enforcement where the adjudicator addressed the dispute referred to them.
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
Adjudications frequently turn not only on the underlying merits of a dispute, but also on how effectively the parties present their arguments. 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.
