UK Construction and Law

Adjudicator rejected both sides on the damages rate and his decision was still enforced

By Staff Writer  |  15 August 2026

An employer resisted enforcement on the ground that the adjudicator had picked a third answer neither party had argued for. The Technology and Construction Court held that he had answered the question put to him, and entered summary judgment for £136,769 with the adjudicator's fees.

BDP Construction Limited v Cygnet Behavioural Health Limited [2026] EWHC 1796 (TCC) was decided by Mr Justice Constable in Leeds and handed down on 16 July 2026. It is worth the attention of anyone who has ever sat in an adjudication where the parties disagree about what the contract actually is.

The contractor built a hospital at 140 Wolverhampton Road in Wolverhampton under an amended JCT Design and Build Contract 2016. The employer claimed liquidated damages and alleged defects, and held money on account of both. The contractor wanted its retention released.

Two contracts, two rates

The parties could not agree which documents made up their bargain, and the difference mattered. On the employer's version, taken from contract documents of 27 September 2022, the completion date was 29 February 2024 and liquidated damages ran at £1,000 per day. On the contractor's version, based on amendments it said were sent on 13 March 2024, the completion date was 26 April 2024 and damages ran at £14,500 per week. The contract was never executed.

Each side said it had never seen the other's document. Neither pleaded the other's case as an alternative.

The adjudicator, appointed by the Royal Institution of Chartered Surveyors on 22 January 2026, decided the completion date on the contemporaneous records and found it to be 29 February 2024, which was the employer's date. On the rate, he took a different route. He was not persuaded that the parties had agreed either £14,500 per week or £1,000 per calendar day, and decided that neither had evidenced the rate agreed or intended. Having found no established rate, and the employer not having adjusted the completion date, he found the employer was not entitled to liquidated damages at all. He rejected the defects claim and ordered the retention paid.

The colour of the building

On enforcement the employer said that was an excess of jurisdiction. The argument was put through an analogy that the judgment records and then works through. Two parties ask an adjudicator whether a building is red or yellow. He may say red, or yellow, or in a proper case orange. If he thinks it is purple he must ask for submissions first. What he cannot do is answer that the building does not exist.

To succeed, the employer had to establish that the parties had agreed the outcome was binary and that the adjudicator's only task was to choose between the two rates. It could not. Neither party had conceded the other's case in the alternative, so nothing bound the adjudicator to adopt one rate if the party contending for the other failed to prove it.

Far from exceeding his jurisdiction, he answered the question asked precisely in accordance with both sides' case: he effectively accepted what BDP said about Cygnet's case, and accepted what Cygnet said about BDP's case.

Mr Justice Constable, High Court of Justice, Technology and Construction Court

The court added that if the adjudicator had applied too high a standard of proof in deciding whether an agreement existed, that would at most have been an error of law. An error of law in answering the question referred is not a ground for resisting enforcement.

The natural justice argument

The first way the point was put depended on the same agreement the employer had failed to establish, and fell with it. The second stood alone: that the adjudicator should have warned the parties he was about to reject both cases.

That failed too. The employer's own account of what it would have said, had it been warned, was that the adjudicator did not need to decide whether the contract contained a damages mechanism at all, because both sides agreed it did. The court held that was not what the adjudicator had decided. He had not found the mechanism absent. He had found that neither side proved the rate.

Pleading a single rate and refusing to plead an alternative is a choice. It leaves the adjudicator free to find that nobody proved anything.

Summary judgment followed in the sum of £136,769, plus £4,779 for the adjudicator's costs, with interest.

The practical reading is uncomfortable for both sides of a delay dispute. A party that argues one rate and only that rate is not protected if the other side's rate falls away. Where the contract documents themselves are contested, the safer course is to put the alternative case, even where doing so sits awkwardly with the primary argument, and to say so in terms.