Project One London Limited v VMA Services Limited

The Claimant, Project One London Limited (“POL”), seeks enforcement of the award in its favour in an adjudication dated 18 September 2025 (“the Award”).

The Defendant, VMA Services Limited (“VMA”), resists enforcement on the basis of three matters, all of which are said to constitute a breach of the rules of natural justice. These are summarised as follows at paragraph 19 of VMA’s main skeleton argument:

In this judgment, I will deal with the issues which arise under the following headings:

The Parties entered into a contract on or around 16 October 2023 in the form of POL’s Sub-Contract Order (incorporating the JCT Design and Build Sub-Contract Agreement Conditions 2016) for the design and installation of mechanical works at 1 – 4 Munro Terrace & 112 – 114 Cheyne Walk, London SW10 0DJ. The Contract Sum was £387,696.36.

VMA’s Application for Payment No.8 (“AFP8”) was submitted on 21 June 2024 for Works completed up to and including 30 June 2024. The gross sum of the application totalled £274,259.81, leaving a net value of the Works complete, less retention, of £260,546.83, with a payment due of £106,434.88 after the deduction of previous payments.

POL served no valid or timely Payment Notice or Pay Less Notice. POL served a notice of intention to refer a Dispute for Adjudication in relation to the true value of AFP8, in response to which VMA invited the adjudicator to refuse the adjudication and order payment of the sum claimed therein. This resulted in a decision on 10 February 2025, under which the Adjudicator Mr Borg determined that AFP8 was a Notified Sum, which was required to be paid before any True Value Adjudication could be addressed. Accordingly, Mr Borg decided that the Defendant should forthwith pay the Claimant the sum of £112,033.65, including interest. That decision was the subject of enforcement proceedings before me and I ordered payment of the sum, together with interest and costs. That order was complied with.

On 15 August 2025, POL served a notice of intention to refer a Dispute to Adjudication in relation to the true value of AFP8. On 18 August 2025, POL applied to RICS for the nomination of an Adjudicator, as a result of which Mr Bordill was nominated by RICS. Mr Bordill is an experienced Quantity Surveyor.

Mr Bordill issued the Award to the parties on 18 September 2025, under which the Adjudicator’s assessment of the value of AFP 8, for interim payment purposes, net of retention, was £157,890.16. That being the case, the Adjudicator directed VMA to repay the sum of £102,656.67 to POL by 25 September 2025, with no interest awarded.

An adjudication decision which has been arrived at in breach of the rules of natural justice will not usually be enforced. In particular, if an adjudicator goes off on a frolic of his/her own, deciding a case upon a factual or legal basis which has not been argued or put forward by either side, without giving the parties an opportunity to comment or, where relevant put in further evidence, there may be such a breach.

Edwards-Stuart J explained this as follows in Roe Brickwork v Wates Construction [2013] EWHC 3417 (TCC), with emphasis added:

“23.

If an adjudicator has it in mind to determine a point wholly or partly on the basis of material that has not been put before him by the parties, he must give them an opportunity to make submissions on it. For example, he should not arrive at a rate for particular work using a pricing guide to which no reference had been made during the course of the referral without giving the parties an opportunity to comment on it.

24.

By contrast, there is no rule that a judge, arbitrator or adjudicator must decide a case only by accepting the submissions of one party or the other. An adjudicator can reach a decision on a point of importance on the material before him on a basis for which neither party has contended, provided that the parties were aware of the relevant material and that the issues to which it gave rise had been fairly canvassed before the adjudicator. It is not unknown for a party to avoid raising an argument on one aspect of its case if that would involve making an assertion or a concession that could be very damaging to another aspect of its case.”

However, the following important limitations on this principle should be noted.

Firstly, the courts recognise that adjudication is an (intentionally) rough and ready, speedy process and understand the pressures which this process imposes upon adjudicators. The classic statement of this approach is set out in the judgment of the Court of Appeal in Carillion Construction Ltd v Devonport Royal Dockyard  [2006] BLR 15:

“[85] The objective which underlies the 1996 Act and the statutory scheme requires the courts to respect and enforce the adjudicator's decision unless it is plain that the question which he has decided was not the question referred to him or the manner in which he has gone about his task is obviously unfair. It should be only in rare circumstances that the courts will interfere with the decision of an adjudicator. The courts should give no encouragement to the approach… which… may, indeed, aptly be described as “simply scrabbling around to find some argument, however tenuous, to resist payment”.

[86] It is only too easy in a complex case for a party who is dissatisfied with the decision of an adjudicator to comb through the adjudicator's reasons and identify points upon which to present a challenge under the labels “excess of jurisdiction” or “breach of natural justice”. It must be kept in mind that the majority of adjudicators are not chosen for their expertise as lawyers. Their skills are as likely (if not more likely) to lie in other disciplines. The task of the adjudicator is not to act as arbitrator or judge. The time constraints within which he is expected to operate are proof of that. The task of the adjudicator is to find an interim solution which meets the needs of the case. Parliament may be taken to have recognised that, in the absence of an interim solution, the contractor (or sub-contractor) or his sub-contractors will be driven into insolvency through a wrongful withholding of payments properly due. The statutory scheme provides a means of meeting the legitimate cash-flow requirements of contractors and their sub-contractors. The need to have the “right” answer has been subordinated to the need to have an answer quickly. The Scheme was not enacted in order to provide definitive answers to complex questions. Indeed, it may be open to doubt whether Parliament contemplated that disputes involving difficult questions of law would be referred to adjudication under the statutory scheme; or whether such disputes are suitable for adjudication under the Scheme. We have every sympathy for an adjudicator faced with the need to reach a decision in a case like the present.

[87] In short, in the overwhelming majority of cases, the proper course for the party who is unsuccessful in an adjudication under the Scheme must be to pay the amount that he has been ordered to pay by the adjudicator. If he does not accept the adjudicator's decision as correct (whether on the facts or in law), he can take legal or arbitration proceedings in order to establish the true position. To seek to challenge the adjudicator's decision on the ground that he has exceeded his jurisdiction or breached the rules of natural justice (save in the plainest cases) is likely to lead to a substantial waste of time and expense …'”

Secondly, the breach must be material, not peripheral. As I observed in the recent case of Lapp Industries Ltd v 1^st Formations Ltd [2025] EWHC 943 (TCC) at para 35 :

“it is necessary, in my judgment, that a natural justice challenge shows that the relevant failing by the adjudicator “went to the heart of the dispute”: see Pilon Limited v Breyer Group PLC [2010] EWHC 837 para 43. Even if an adjudicator has gone on a “frolic” or has failed, deliberately, to consider a defence that is of no moment unless such failure pertains to a critical part of the decision ultimately reached.”

Thirdly, it is no grounds for resisting enforcement for a party to point out that the adjudicator has misunderstood the evidence or the law. It is only in an exceptional case that a failure to engage with a matter raised in the adjudication will assist a defendant to resist enforcement. The relevant law is set out in KNN Coburn LLP v GD City Holdings Ltd [2013] EWHC 2879 (TCC):

“48.

A number of authorities have referred to the question of natural justice in the context of adjudications. I respectfully adopt and endorse the judgment of Coulson J in Pilon Limited v Breyer Group Ltd [2010] EWHC 837 where he reviewed relevant authorities from [17] and provided a summary of the relevant principles at 22. For present purposes it is sufficient to set out his summary, which was:

22 As a matter of principle, therefore, it seems to me that the law on this topic can be summarised as follows.

22.1

The adjudicator must attempt to answer the question referred to him. The question may consist of a number of separate sub-issues. If the adjudicator has endeavoured generally to address those issues in order to answer the question then, whether right or wrong, his decision is enforceable: ….

22.2

If the adjudicator fails to address the question referred to him because he has taken an erroneously restrictive view of his jurisdiction (and has, for example, failed even to consider the defence to the claim or some fundamental element of it), then that may make his decision unenforceable, either on grounds of jurisdiction or natural justice: ….

22.3

However, for that result to obtain, the adjudicator's failure must be deliberate. If there has simply been an inadvertent failure to consider one of a number of issues embraced by the single dispute that the adjudicator has to decide, then such a failure will not ordinarily render the decision unenforceable: ….

22.4

It goes without saying that any such failure must also be material: …. In other words, the error must be shown to have had a potentially significant effect on the overall result of the adjudication: ….

22.5

A factor which may be relevant to the court's consideration of this topic in any given case is whether or not the claiming party has brought about the adjudicator's error by a misguided attempt to seek a tactical advantage. … .”

49.

It will be noted that an inadvertent failure to consider one of a number of issues will “ordinarily” not render the decision unenforceable. This qualification admits the possibility that an inadvertent failure may in an extraordinary case bring the principle into play. No clear guidance is available about when an inadvertent failure will render the decision unenforceable. Since the essence of the adjudication process is that the real dispute between the parties should be resolved, it seems to me that the touchstone should be whether the inadvertent failure means that the adjudicator has not effectively addressed the major issues raised on either side. Clearly, as [22.4] of Pilon makes clear, the failure must be material in the sense of having had a potentially significant effect on the overall result of the adjudication.”

In relation to this item, the Adjudicator had to value work claimed at circa £47,000. POL’s case was that the design of the air conditioning was defective.

The Adjudicator’s decision was as follows:

“111.

Based on the Parties’ submissions I am not persuaded by the Contractor that the air conditioning design was out with the specification in the Sub-Contract. The Contractor’s submissions do not take me to a clear requirement for close control or a clear breach of a performance specification. Page 27 of 34 Adjudicator’s Decision – POL v VMA (DRS-00016554) – September 2025 210 112. The Contractor places reliance upon a report drafted by its replacement subcontractor (360 Heating) which, amongst other things, says there is no problem with the studio apartments, units 7 and 9 (RefExhibit 17 item 10 also referenced SurExhibit 4a-2 from a previous adjudication). An email from 360 Heating dated 28 October 2024 informs me that some of the fan coil units can be repurposed within its design.

113.

The Contractor also places reliance on an email from Mr Whitehurst in which he says the existing fan coil units (presumably the Viridis fan coil units) can be utilised in the 1 bed units.

114.

It is clear from the evidence provided by the Contractor that the valuation of air conditioning within AFP 8 cannot be £nil. I have no other assessment to consider and so I decide the value as claimed by the Subcontractor, subject to adjustment to reflect the possibility of defects in the pipework, consistent with the water services.

115.

My valuation is £23,703.66 (£47,407.33 x 50% = £23,703.66) (see RefExhibit 3, tab Contract Works, columns H & J, attached to this Decision).”

The underlined passage is that complained of by VMA. They say that the Adjudicator, having rejected the design allegations, then went off on a “frolic” by making this adjustment for which no evidence or argument had been addressed by either party. VMA complain that, this pipework issue never having been raised, they were given no opportunity to deal with the same, in breach of the rules of natural justice.

I do not agree.

One needs to see the underlined words in the context of the Award as whole and, in particular paragraph 101 dealing with water services, as to which the Adjudicator concluded:

“Based on the evidence provided, it is clear to me that some pipework was likely defective (i.e. valves etc and hot/cold connections) and so I decide the value is 50% of the amount claimed, i.e. £16,953.88 (£33,907.76 X 50% = £16,953.88) (see RefExhibit 3, tab Contract Works, columns H & J, attached to this Decision).”

What, therefore, the Adjudicator was saying, was that his conclusions on the pipework, which issue had been extensively ventilated before him, was likely to affect the valuation of the air conditioning. That was, in the adjudication context, a fair way of approaching the matter. The parties had had a perfectly adequate opportunity to address the pipework issues. In the language of Roe Brickwork, the parties were aware of the relevant material and the issues to which it gave rise had been fairly canvassed before the adjudicator.

Furthermore, the Adjudicator was really saying that, in his judgement, the valuation of the air conditioning could not be nil and could not be 100%. The evidence and submissions before him were unhelpful and imprecise, and so he had to do the best he could to achieve the rough justice which adjudication requires. Using his experience and based on the whole of the evidence before him, he reached the valuation set out at paragraph 114 of the Award. That he was quite entitled to do: indeed, many Judges, even in the High Court, have to make monetary assessments every day with inadequate evidence. They do the best they can and cannot be criticised for so doing: nor can this Adjudicator.

In relation to two items (water tank and testing), it is said that the Adjudicator ignored undisputed evidence and substituted his own guess as to the valuation.

As to the water tank, the Award states as follows:

“119.

The Contractor’s position is:

119.1.

The Contractor contends there is no evidence of the work being undertaken but does not contest the tank was on site. In fact, RefExhibit 19 provides evidence the tank is on site.

120.

The Subcontractor’s position is: 120.1. The Subcontractor has claimed £10,944.55 for cold water tanks but has not specifically referenced this item in this submission.

It is clear to me from the Contractor’s position that it acknowledges the cold-water tanks were on site waiting to be installed in the plant room. The Contractor references calling another contractor to arrange installation. I have decided to allow a nominal amount based on an allowance of 25% of the amount claimed. This is to represent the likely value of an uninstalled tank.

I decide this item is valued at £2,736.14 (£10,944.55 X 25% = £ 2,736.14) (see RefExhibit 3, tab Contract Works, columns H & J, attached to this Decision).”

VMA complain that, thereby, “the Adjudicator either ignored the evidence of the tank’s actual cost or rejected it and substituted his own guess – it is unclear which. Either way, in the teeth of undisputed evidence of the actual cost and having failed to apprise the parties of his intended approach to guessing the likely value, that approach has to be deprecated as a frolic of his own.”

I consider this criticism to be misconceived in the present context. The Adjudicator may have misunderstood or overlooked relevant evidence, but that is not a ground to resist enforcement. VMA’s case on this item is really an attempt to dress up an alleged error of law or fact as a breach of natural justice.

Furthermore, for a failure to consider evidence to amount to a breach of natural justice, there must be a deliberate failure to consider the evidence. There is nothing to suggest that the Adjudicator deliberately ignored any evidence. It would only be in an extraordinary case that an inadvertent failure to consider some issue would bring the natural justice principle into play, and this is not such a case.

As to testing it is said that the Adjudicator’s failure to consider evidence “was unfair and its effect was to deprive VMA of £1,921 in relation to its testing”.

Again, I am unable to agree with this submission. The Adjudicator held (paragraph 118 of the Award) that “the Subcontractor has provided nothing to support the amount claimed. On this basis I value this item at £nil”. He was quite entitled to so find. If in reaching this conclusion, he ignored or misunderstood relevant evidence, that is not a breach of the rules of natural justice.

The complaint here is that the Adjudicator subjected three further items to deductions as follows:

VMA say that these reductions were at best guesswork and that the Adjudicator compounded this error by describing the reductions as “arbitrary”, as (they say) they in fact were.

As to this point, Mr Dilworth, who appears for VMA, drew my attention to a number of authorities on arbitrariness. For example, in Maharaj v Prime Minister [2016] UKPC 37 [2017] 2 LRC 439, the Privy Council quoted with approval a dictum from an earlier case that “Implicit in the right to natural justice is the concept of justice, the antithesis of which is arbitrariness.”

I do not find these authorities of any assistance in the present context. Of course, where, for example public authorities are wielding the power of the state over citizens, they must do so in accordance with the law and not arbitrarily. But the Adjudicator here was doing no such thing. Rather he was making the best valuation assessment he was able to, on the basis of the information before him and in the short time available.

I am satisfied that in making these assessments and using the word “arbitrary”, the Adjudicator meant no more than that he was providing the best approximate valuation he was able to produce in the time available. That is exactly what the courts require adjudicators to do: no more and no less.

Of course, as Dyson, J (as he then was) pointed out in the very first enforcement case:

“Parliament has not abolished arbitration and litigation of construction disputes. It has merely introduced an intervening provisional stage in the dispute resolution process. Crucially, it has made it clear that decisions of adjudicators are binding and are to be complied with until the dispute is finally resolved.”

( Macob Civil Engineering Ltd v Morrison Construction Ltd [1999] B.L.R. 93, paragraph 14).

Thus, if VMA wish to argue that the Adjudicator’s assessment was flawed and insufficient, they are quite entitled so to do in due course. But, in the meantime, the Award should be complied with until the dispute is finally resolved.

This case involves an experienced Adjudicator evaluating, on a temporary basis, the true value of an interim payment application. Such an application, which has to be valued in short order, usually on a monthly basis, would normally fall to be assessed on a relatively rough and ready footing in the course of a project. If an item is undervalued in one month, the applicant can produce more information the next to persuade the Quantity Surveyor / paying party to put in a higher figure. And all of these interim applications and valuations are subject to the much more protracted and detailed process of the final account at the end of the project.

In these circumstances, I do not think that VMA’s three complaints, individually or cumulatively, would have been material, even if I had been persuaded by some or all of them. They do not go to the heart of the dispute. There was no perfect answer to the thirteen items (see Award paragraph 74) which the Adjudicator had to assess. If he had been persuaded by the points now advanced by VMA on the evidence, he might have come to a somewhat higher valuation. Or he might not. In other words, taken in the round, there was a range of valuations of AFP8 to which the adjudicator might have come, consistent with natural justice.

Thus, this is not the sort of case where the court will refuse to enforce a decision because there has been unfairness on some absolutely central issue. VMA have not been shut out from bringing forward their case in the adjudication. Nor did the adjudicator go outside the (wide and necessarily imprecise) boundaries of what was permissible in considering an interim application for payment.

For the reasons given above, I do not think that VMA have established that they have real prospects of success on any of their allegations of breach of natural justice. And even if one or more of these allegations had been persuasive, I do not think that any such breaches were sufficiently material as to warrant the court’s refusal to enforce the Award.

In fact, standing back from the detail, this is a classic case of a losing party seeking “to comb through the adjudicator's reasons and identify points upon which to present a challenge under the labels “excess of jurisdiction” or “breach of natural justice”. Moreover, “The task of the adjudicator is not to act as arbitrator or judge…The task of the adjudicator is to find an interim solution which meets the needs of the case.” That is what this adjudicator did.

POL are, therefore, entitled to enforcement of the Award as claimed.

Counsel should please seek to agree all consequential matters that arise, failing which there will be a short remote hearing to resolve any remaining issues.