TCC confirms enforcement of an adjudicator’s decision regarding an NEC Project Manager’s negligent over-certification

Background

Coventry & Warwickshire Development Partnership LLP (“CWDP“) engaged Avison Young (UK) Limited (“AY”) to act as Project Manager and Supervisor in relation to a £95million NEC3 ECC between CWDP and Buckingham Group Contracting Limited (“Buckingham”) for infrastructure works at Gateway South Coventry.

AY was engaged from January 2020 to January 2023.   Administrators were appointed in respect of Buckingham in September 2023.

CWDP contended that AY had significantly over-valued the amounts due to Buckingham (the Price for Work Done to Date (PWDD)).   CWDP alleged that AY had accepted, without questioning, reduced total baseline volumes for the total amount of work to be done.   This had the effect of increasing the proportion of work completed for the same amount of work actually done.   AY also failed to properly assess the amount of work completed by Buckingham. 

As a result of AY’s over-valuations in its payment certificates CWDP over-paid Buckingham with the result that, when Buckingham became insolvent, it had been overpaid by a significant amount and CWDP could not recover that overpayment.

The Adjudication

An adjudication was commenced by CWDP with Dr Franco Mastrandrea appointed as Adjudicator. Dr Mastrandrea issued his decision in February 2026.

In the decision, the Adjudicator concluded that CWDP’s criticisms of AY’s performance were valid, including:

• “(a) acceptance, without any apparent reason, revised (reduced) baseline volumes for the earthworks submitted by BGCL which significantly reduced the overall amount of work to be done, despite no evidence being provided to support such reduced volumes. …
• (b) acceptance of the extent of progress claimed by BGCL in its applications for payment without any apparent interrogation of the data presented and despite the fact that the progress claimed was materially over-stated compared to the progress reported by BGCL at the same point in time in other reports and other progress information in AY’s possession. AY took BGCL’s applications for payment at face value despite AY being in possession of other information (including information from BGCL) that indicated a significantly smaller amount of work completed;
• (c) failure properly to discharge its duties as NEC Supervisor. As a result, AY failed to identify Defects in the works which, if they had been properly identified, should have led to a reduced assessment of the PWDD.”

He went on to say:

“It seems to me reasonably clear from this, that AY was prepared to accept largely at face value the progress information placed before it by BGCL, which in turn coincided with the PEE quantities. I accept therefore, the CWDP assertion that AY did not much challenge the BGCL applications for payment and relied instead largely on the PEE application quantities which in turn did not well correlate with the EPD quantities. “

The Adjudicator awarded CWDP £8,729,173.33 plus interest as damages for failing to properly assess the sum payable to Buckingham.

The adjudication decision confirms that those certifying payments under construction and engineering contracts – such as NEC Project Managers and JCT Contract Administrators or Employer’s Agents can face claims for negligent over-valuation if their assessments are materially wrong and the employer cannot recover any over-payment from the contractor.

The enforcement proceedings

AY failed to pay the sums awarded in the adjudicator’s decision and so CWDP commenced enforcement proceedings in the TCC. AY raised various arguments to challenge enforcement:

1. That the Adjudicator failed to address the dispute referred to him but instead addressed a different dispute;
2. The Adjudicator failed to give adequate reasons for his decision;
3. The Adjudicator breached the rules of natural justice by taking account of certain documents without giving the parties an opportunity to address them and/or reaching a decision on a basis not contended for by either party;
4. That certain elements of the decision should be severed and the severed parts not enforced.

All of AY’s arguments were dismissed, with some being described as ‘fanciful’.

Key takeaways from the decision include:

1. The question of whether adequate reasons have been given is to be answered by reading the relevant decision as a whole and an Adjudicator is not obliged to give “reasons for reasons”.   Therefore, it is sufficient if the reasons enable the parties to understand what it is the adjudicator has decided and why.
2. The Adjudicator had decided the dispute referred to him.   The Judge noted that he was to  “look at the question in the round, having regard to the substance of the matter and to the reality of the adjudication… [ and ] not .. be concerned with semantics nor with the elegance or otherwise of the Adjudicator’s articulation of the law.”
3. There was no breach of natural justice where the parties had canvassed different positions on a particular issue. The Adjudicator was not bound by the contentions of the parties and could reach a conclusion for which neither party had contended provided the parties had a fair opportunity to address the matters the adjudicator was considering.   The Judge stated “It is verging on the fanciful to suggest that either side was unaware of the possibility that its arguments on this point might be accepted in part rather than in whole.”
4. Absent any lack of jurisdiction or breach of natural justice, it was not appropriate for a party to contend that a part of the decision was wrong and seek severance of that part on enforcement.  Part 8 proceedings should be commenced to obtain a declaration that a decision on a particular issue is wrong.
5. The Judge also rejected AY’s attempt to recalculate the amount of the award based on different conclusions in relation to different issues.   That, in the view of the Judge, was not the severance of a distinct decision nor even a distinct part of the decision, but the reversal of one aspect of the decision and a recalculation of the final sum on a different basis.

The Judgment reinforces the ‘robust’ approach the Courts will take to enforcement of adjudicator’s decision and challenges to enforcement.

Joseph Hale and Rose Wilson of the Eversheds Sutherland Construction & Engineering team acted for CWDP in the adjudication and the enforcement proceedings.