An adjudicator’s decision in two separate but substantially similar adjudications are both held by the court to be enforceable

In the recent case of Construction Muzzy Ltd v Davis Construction (South East) Ltd [2025] the English courts considered the challenging of two decisions made by the same Adjudicator on grounds of natural justice and jurisdiction. In finding that both decisions were enforceable, the court clarified that in order to hold such a decision unenforceable on these grounds, the arguments require more than a “fanciful prospect of success“, thus confirming that a high bar exists for such arguments to succeed

Background to adjudications

The case concerned a dispute around the quality of works carried out under two separate construction sub-contracts. Davis Construction (South East) Ltd (DCL) employed Construction Muzzy Ltd (CML) for the provision of ‘groundworks’ and ‘drainage works’ services under the sub-contracts. The works were not completed as CML was asked to stop work at the site, due to DCL’s dissatisfaction with the quality of the work carried out. The dispute led to two adjudications being raised by CML, being an adjudication on each separate sub-contract. Both disputes involved DCL’s failure to issue a pay less notice. The same adjudicator was appointed on both disputes, who found in favour of CML in both adjudications, requiring a payment from DCL.

DCL’s disputed adjudicator’s decisions

DCL refused to pay the sums due under each adjudication, leading CML to raise proceedings to enforce the adjudicator’s decisions. DCL argued that the adjudicator’s decision should not be enforced, due to the following:

The adjudicator had placed undue weight on the unsolicited surrejoinder by CML during the groundworks adjudication.
The adjudicator was obligated to resign from the later drainage works adjudication due to a lack of jurisdiction as the disputes were “substantially the same”.
The approach of the adjudicator in the drainage works adjudication was “one of predetermination rather than one of fresh eyes and an open mind”, given their involvement in the groundworks adjudication, and that this represented a breach of natural justice.

The judgment

The court dismissed each of DCL’s arguments and enforced the adjudicator’s decisions. In doing so, the court held that:

The adjudicator did not place undue weight on the surrejoinder. The court was satisfied that the surrejoinder “did not steal an unfair advantage”. The surrejoinder merely afforded CML an opportunity to respond to DCL’s rejoinder. Furthermore, it had a limited impact on the decision. No unfairness to DCL, or general breach of natural justice had occurred and appropriate weight was placed on the surrejoinder.
The adjudicator was not required to resign from the drainage adjudication. The court held that the adjudications were founded on disputes from two related contracts, but each with individual facts, and the adjudicator would only be obligated to resign if the party was re-adjudicating a dispute that they had already lost. The court held there to be no duty to resign and accordingly the adjudicator had jurisdiction. There was no breach of natural justice due to the same adjudicator being appointed in both adjudications.
The court was not sympathetic to DCL’s allegation that the drainage adjudication was predetermined. DCL’s lack of participation in the process left the adjudicator with only CML’s evidence to consider, which made it unlikely that the adjudicator could proceed differently. The evidence presented was appropriately reviewed, and the decision was in accordance with the principles of natural justice.

Key takeaways

The outcome of this case highlights that:

Disputes arising under different contracts or sub-contracts that are substantially similar can be referred to the same adjudicator provided they are separate adjudications.
Failing to participate in an adjudication will not result in the court automatically accepting there has been a breach of natural justice.
‘Smash and grab’ adjudications remain present in the industry, and parties should be clear when payment applications, payment notices, and pay less notices are to be issued.
There remains a high bar set by the court to have any adjudication decision rendered unenforceable, and the courts continue to be supportive of giving effect to adjudication decisions.

If you would like any further information, please get in touch with a member of our Construction, Engineering and Infrastructure Disputes team.

This article was co-authored by Trainee Ruaridh Brown.

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