When an Adjudicator Goes Too Far: Natural Justice Warning from a Recent English Case

Only recently, I wrote about adjudicators’ jurisdiction under the Construction Contracts Act 2002, and in particular whether an adjudicator’s jurisdiction is limited to the notice of adjudication. The key point in that discussion was that the notice remains important, but it does not necessarily provide the complete jurisdictional map. The better approach is to identify the real dispute properly referred under the statutory process as a whole, while remaining alert to the limits imposed by natural justice and procedural fairness.
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The recent English TCC decision in Premier Modular Ltd v Maidstone and Tunbridge Wells NHS Trust [2026] EWHC 1404 (TCC) provides a useful companion to that discussion. Although it arises under the English adjudication regime and an NEC4 contract, the principle is highly relevant to adjudication practice more generally: an adjudicator may analyse the dispute robustly and is not confined to simply choosing between the parties’ submissions, but must not decide the case on a materially different and decisive basis without giving the parties a fair opportunity to respond.
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In that sense, Premier Modular is not merely a case about NEC compensation events or Accepted Programmes. It is a case about the boundary between legitimate adjudicative reasoning and procedural unfairness. It illustrates that a broad notice of adjudication may answer a jurisdictional objection, but it will not necessarily cure a natural justice problem if the decision ultimately turns on a case that neither party actually had the opportunity to address.

The English Technology and Construction Court’s decision in Premier Modular Ltd v Maidstone and Tunbridge Wells NHS Trust [2026] EWHC 1404 (TCC) is a useful reminder that adjudication remains a robust, fast-moving process, but not one in which an adjudicator may decide the dispute on a materially different basis without giving the parties a fair opportunity to respond.

The case is not a rejection of the usual “pay now, argue later” approach. Far from it. The Court expressly recognised the difficult task faced by adjudicators and the courts’ usual reluctance to interfere with adjudication decisions. However, the Court considered this to be one of the rare cases where the manner in which the adjudicator reached his decision was obviously unfair.

Background

Premier Modular Limited (“PML”) was engaged by Maidstone and Tunbridge Wells NHS Trust to design and construct a new barn theatre at Maidstone Hospital. The contract was based on the NEC4 Option A form.

A dispute arose in relation to the availability of a permanent mains water supply. PML said it needed the permanent water supply by 30 October 2023 for testing and commissioning, but that the Trust did not make it available until 20 February 2024, causing delay. The Trust accepted that it was responsible for the mains water supply, but denied that it had to provide it by any particular date.

PML referred the dispute to adjudication. In its Referral, PML advanced its compensation event case under clauses 60.1(1), 60.1(14) and 60.1(18) of the NEC4 conditions. In broad terms, those provisions concerned an instruction changing the Scope, a Client’s liability, and a breach of contract by the Client.

However, the adjudicator ultimately decided the case on a different contractual route. He found that there was a compensation event under clause 60.1(3), which applies where the Client does not provide something it is to provide by the date shown on the Accepted Programme. He also found that a later revised programme had become an Accepted Programme, despite both parties having proceeded on the basis that the original Accepted Programme had not been updated.

The adjudicator awarded PML approximately £1.65 million. The Trust did not pay, and PML applied to enforce the adjudication decision by summary judgment.

The Trust’s challenge

The Trust resisted enforcement on natural justice grounds. Its main complaint was that the adjudicator’s central finding had been made on a contractual basis that neither party had advanced.
The Trust said that PML had not run a clause 60.1(3) case. The parties had instead addressed clauses 60.1(1), 60.1(14) and 60.1(18). The Trust also said that the adjudicator’s finding that a later revised programme had become an Accepted Programme was contrary to the common position adopted by both parties during the adjudication.

There was also a separate complaint that the adjudicator had failed properly to deal with the Trust’s time-bar defence under clause 61.3.

The Court’s approach

The Court drew a distinction between two types of natural justice challenge in adjudication:

1. where an adjudicator fails to consider a defence; and
2. where an adjudicator decides the dispute on a basis that a party had no adequate opportunity to address.

This case principally fell into the second category.

The Court accepted that an adjudicator is not required simply to choose between the submissions advanced by the parties. An adjudicator may reach a conclusion that is not precisely the same as either party’s case, provided the relevant issues have been fairly canvassed.

However, there is an important limit. If an adjudicator wishes to decide the dispute on a materially different factual or legal basis, especially one that may be decisive, procedural fairness requires that the parties be given an opportunity to comment.

That did not happen here.

Why enforcement was refused

The Court held that the adjudicator had decided the central issue on a basis that was not argued by either party, was contrary to the parties’ common position on the Accepted Programme, and had not been fairly put to them for comment.

PML argued that the Notice of Adjudication was broad enough to allow the adjudicator to consider the whole of clause 60.1. The Court rejected that answer in the context of natural justice. A broadly framed notice might answer a jurisdictional objection, but it does not necessarily answer a complaint that the parties were not given a fair opportunity to address the decisive basis of the decision.

The adjudicator had asked a clarification question referring to clause 60.1(3), but the Court found that this did not fairly alert the parties that he was considering deciding the case on that basis. The clarification question was directed to whether a particular revised programme was an Accepted Programme. Both parties answered that it was not.

The Court therefore concluded that the adjudicator had, in effect, created a better case for PML than the one PML had actually advanced. That was a breach of natural justice.

On the separate time-bar issue, the Court was less sympathetic to the Trust. Even if the adjudicator had misunderstood the Trust’s case or confused the contractual regime, that would not itself amount to a breach of natural justice. The Court would not, on an enforcement application, pick through the merits of the adjudicator’s reasoning.

The decisive point was not that the adjudicator may have made an error. It was that he had decided the case on a material and unargued basis without giving the parties a proper opportunity to address it.

Practical lessons

1. A broad notice does not cure unfairness
A broadly framed notice of adjudication may assist in answering a jurisdictional challenge, but it does not give an adjudicator unlimited freedom to decide the dispute on any possible contractual basis. If the decisive point has not been fairly raised or argued, natural justice concerns may still arise.

2. Adjudicators can be proactive, but must be careful
Adjudicators are not passive decision-makers. They are entitled to analyse the contract, test the parties’ arguments, and reach their own conclusions. However, where an adjudicator identifies a potentially decisive point that neither party has advanced, the safer course is to raise it clearly with the parties and invite focused submissions.

The question should be direct. It is not enough to refer generally to a clause or ask a related clarification question if the parties are not clearly alerted to the point that may determine the outcome.

3. Parties should plead their contractual route clearly
For claimants, the case is a reminder to identify the contractual basis of entitlement with precision. If a compensation event is said to arise under a particular clause, that route should be clearly pleaded and supported by the evidence.

For respondents, the decision shows that natural justice challenges remain difficult but possible. The complaint must usually be more than “the adjudicator got it wrong.” The stronger argument is that the adjudicator decided a material issue on a basis that was not put to the parties and which they had no fair opportunity to meet.

4. Accepted Programmes matter under NEC contracts
The case also highlights the importance of programme status under NEC contracts. There can be a significant difference between a programme used for practical project management purposes and an Accepted Programme under the contract. That distinction may affect not only delay assessment, but also whether a compensation event exists at all.

Relevance for New Zealand adjudication

Although this is an English TCC decision, the underlying principle is familiar in New Zealand adjudication. Adjudicators are expected to decide disputes quickly and robustly, but they must still comply with natural justice.

The practical message is one of balance. Adjudicators should not be overly technical or constrained by labels used by the parties. But if an adjudicator is considering deciding the dispute on a materially different basis, particularly one that may determine the outcome, fairness requires that the parties be given a proper opportunity to respond.

Conclusion

Premier Modular does not weaken adjudication enforcement. It reinforces the usual rule that courts will enforce adjudication decisions except in rare cases. But it also confirms an important boundary: adjudicators may decide the dispute referred to them, but they should not create and determine a materially different case without first putting that case to the parties.

In short, adjudication may be fast, but it must still be fair.