Blog - 08/04/2020
Covid-19: Adjudication update
Further to our blog post last week, (challenges parties might face in bringing or defending adjudications), Mrs Justice Jefford, sitting in the Technology and Construction Court (TCC) via a virtual hearing handed down the recent decision, in MillChris Developments Ltd v Waters  4 WLUK 45. This case gives an initial indication of how the TCC will approach Coronavirus (Covid-19) consequential disruption to adjudication timetables. The contractor sought an injunction to stop an adjudication proceeding on the basis that the rules of natural justice would be breached as a consequence of the disruption caused by Covid-19. Mrs Justice Jefford rejected a contractor’s application for an injunction.
The adjudication was commenced by a domestic home owner alleging that she had been overcharged by her contractor and that there had been defects in the contractor’s works. An adjudicator was subsequently appointed and provided directions which included that a site visit should take place. One of the arguments raised by the contractor was that the adjudication should not proceed because, as a consequence of Covid-19, it faced a number of challenges in complying with the adjudication timetable, and in particular the request for a site visit, as a result of having to adapt to the new working-from home arrangements instructed by the UK Government as well as the self-isolation of its solicitor.
The adjudicator rejected the contractor’s arguments but made adjustments to the adjudication timetable to extend deadlines by two weeks to allow the contractor time to make arrangements so as to be able to comply with the timetable. Unsatisfied with this outcome, the contractor made its application to the TCC for an injunction. The contractor argued that to continue the adjudication would be a breach of natural justice as a result of the difficulties that would be encountered in trying to obtain necessary evidence from witnesses and that it lacked sufficient time to organise an independent surveyor to attend site.
Whilst the TCC made it clear that it had jurisdiction to grant an injunction in respect of an ongoing adjudication, it would only do so very rarely and in very clear-cut cases. The TCC has made it clear that adjudications should continue but that the parties should be pragmatic and flexible and that reasonable timetabling adjustments, such as the adjudicator’s proposed two-week extension of time, would have allowed the contractor to adapt to the new arrangements necessitated by Covid-19 restrictions. Mrs Justice Jefford suggested that documentation required in the adjudication could also be scanned from a party to their solicitor or others, rather than having to be delivered in hard copy. Similarly, it was decided that the contractor did not have to be present at the site inspection and that the adjudicator could conduct the site visit with just the domestic home owner. Arrangements could be made prior to the site visit for it to be recorded or for the contractor to list specific matters to be highlighted to the adjudicator in advance.
It remains to be seen how the TCC will approach any challenges made to enforcement of an adjudicator’s decision where breaches of the rules of natural justice as a consequence of Covid-19 restrictions are raised.
Should you have any questions or concerns about your projects in light of the coronavirus outbreak, please contact our Construction team who will be happy to discuss your specific circumstances with you.
 Michael J Lonsdale (Electrical) Ltd v Bresco Electrical Services Ltd (In Liquidation)  EWHC 2043 (TCC),  B.L.R. 593,  7 WLUK 752
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