“Cash flow is the lifeblood of the building industry.” – Lord Denning
Charles Edwards, a high-performing Construction and Engineering Barrister and Head of Chambers, reviews the Technology and Construction Court case of Construction Muzzy Limited v Davis Construction (South East) Limited [2025] EWHC 2258 (TCC). In this case Construction Muzzy Limited (the “Sub-Contractor”), sought summary judgment to enforce two adjudication decisions against Davis Construction (South East) Limited (the “Contractor”), regarding unpaid sums under two separate sub-contracts; one for groundworks and the other for drainage works in the total sum of £261,191.44 plus interest.
The Contractor’s grounds for resisting summary judgment in order to avoid the application of “pay now, argue later” policy adopted in the TCC, included the following:
- Issue 1: The documents sent by the Sub-Contractor on 26th and 31st July 2024 respectively were not interim payment applications and as a result, raises matters of jurisdiction and breach of the rules of natural justice across both adjudications (Issues 2-4).
- Issue 2: The breach of natural justice point: The Contractor submitted that the adjudicator relied improperly on the ‘unsolicited surrejoinder’ submitted by the Sub-Contractor, ‘for which no permission had been given…’ [paragraph 5 of the Judgment].
- Issue 3: The Adjudicator should have resigned and lacked jurisdiction in the drainage adjudication because it was “substantially the same as the dispute in the groundworks adjudication” [paragraph 5 of the Judgment].
- Issue 4: Alternatively, because the second adjudication was not approached with “fresh eyes and an open mind” and “the Adjudicator’s approach to the drainage adjudication was one of predetermination” [paragraph 5 of the Judgment].
The Court’s analysis of the issues commencing with Issue 2 included the following:
Issue 2 (the groundworks adjudication)
In relation to the second issue, the TCC held that:
“Whilst it is apparent that there are strongly held feelings on the Defendant’s part that a level of unfairness has been operative here, from the use of the interim payment application approach through to the perceived lack of time afforded by the adjudicator to produce the Response and perhaps beyond, I am not persuaded that there is any more than a fanciful prospect of success of this argument based upon breach of the rules of natural justice.” [paragraph 17 of the Judgment]
[Emphasis added]
The Court rejected the Contractor’s contention that the adjudicator significantly relied upon the Sub-Contactor’s Surrejoinder and held that the adjudicator’s consideration of the contents of the Surrejoinder cannot be characterised as “being more than peripheral to or sufficiently decisive or important in the decision-making process”. In agreeing with the Sub-Contractor, the TCC stated that:
“…objectively, the undoubted intended and actual function of the Surrejoinder was not to steal an unfair advantage over the Defendant in having the last word on the implied terms issues, but rather to have a succinct opportunity to respond to the significantly expanded matters in this regard in the Rejoinder, i.e. that to allow the Surrejoinder into the mix of matters being considered was not of itself procedurally unfair. That, in essence, disposes of this point.
If, however, I am wrong about this, it is patently clear to me that the adjudicator’s approach to the contents of the Surrejoinder does not come close to being more than peripheral to or sufficiently decisive or important in the decision-making process, in the way contended for by the Defendant.
The flaw in the Defendant’s analysis, to mind, is neatly exposed by the concession that one option to result in fairness would have been simply to ignore the Surrejoinder completely. In that instance, paragraph 2.49.6 would not have appeared in the decision, but all the other paragraphs would have remained. To argue that the impact of the Surrejoinder was such as to radically alter the views expressed by the Adjudicator as to his conclusions otherwise, to my mind is fanciful indeed. I am satisfied that the observation made at 2.49.6 has no real prospect of being found to have been any more than a minor aspect of the overall decision, the direction of travel of which was all one way, namely against the Defendant’s position.” [paragraphs 17-20 of the Judgment]
As a result, the Court granted summary judgment on the groundworks adjudication, in favour of the Sub-Contractor, as issue 2 has no real prospect of success.
Issue 3
Regarding the third issue (the similarity of disputes and jurisdiction arguments), the Sub-Contractor highlighted that its claims concern notified sums under separate sub-contracts, in respect of which the statutory right to adjudicate arises independently in each case, thereby giving rise to separate claims and different entitlements. In applying the case of Sudlows v Global Switch Estates 1 [2023] EWCA Civ 813 and agreeing with the Sub-Contractor’s argument that the disputes were different, the TCC held that the adjudicator did not need to resign. The TCC further stated as follows:
“A reason why no supportive authority has been referred to me arising out of different contracts or sub-contracts, I am satisfied, is that it is or ought to be patently obvious that the mischief intended to be prevented by the duty to resign can only sensibly be applied to causes of action arising within a discrete contractual factual matrix, as in Sudlows, whether or not aspects of similarity or indistinguishability can be identified across two separate such contracts between the same parties. In that regard, I agree with Mr Egan that an important part of deciding whether disputes are substantially the same must be whether there is a likelihood of impingement upon findings of fact. None is arguable here, in my view, for the reasons he argues.” [paragraph 35 of the Judgment]
Issue 4
The TCC rejected the Contractor’s predetermination argument stating that:
“I am not satisfied that there is any more than a fanciful prospect of a finding at trial of an unfair or material level of pre-determination here, other compelling reason not being relied upon…By refusing to participate, the Defendant left itself open to the potential for an unopposed finding similar to the finding in the groundworks adjudication. Crucially, however, the Adjudicator did not simply approach matters on a “default” basis, but, I am satisfied, properly reviewed the evidence before reaching a decision on that evidence. Para. 2.6 does not indicate that the Adjudicator did not feel it necessary to review matters at all, but rather gives cogent reasons why, having reviewed matters, the result should not be seen as surprising. The Defendant chose to give him no ammunition to proceed differently and the Claimant came up to proof on its evidence. This is not a situation which gets off the ground, it seems to me, in terms of a natural justice argument and I reject it accordingly.” [paragraph 42 of the Judgment]
In conclusion, summary judgment on the drainage works adjudication was granted in favour of the Sub-Contractor as Issues 3 and 4 had no real prospects of success. .
Points to note
This decision reinforces the ‘pay now, argue later’ principle as the starting point. The threshold for resisting enforcement of an adjudicator’s decision remains a high one: there must be more than a ‘fanciful prospect’ of success. Further, the mere fact that two adjudications may appear superficially similar, does not render them the same dispute. In this case, the TCC concluded that they concerned separate disputes arising under two distinct sub-contracts.
The above is for general information only and to encourage discussion and does not constitute legal advice. The author does not assume any responsibility for the accuracy of any statements made and appropriate legal advice should be taken and relied upon before taking or omitting to take any action in respect of any specific matter.
Charles Edwin Edwards MSt(Cantab) MSc(Lond) MCIArb MRICS FCInstCES Barrister New Temple Chambers 30 St Mary Axe London EC3A 8BF
E: charles.edwards@newtemplechambers.com
19th February 2026
For further information with regard to the resolution of any construction, engineering or infrastructure dispute and issues as set out above, please do not hesitate to contact, Charles Edwards, high performing Construction Barrister and Head of Chambers at New Temple Chambers on: charles.edwards@newtemplechambers.com to see how chambers can assist you or your organisation.
