Danion Limited v IPS Roofing Limited
| Court | High Court of Justice, Business and Property Courts in Liverpool, Technology and Construction Court, King's Bench Division |
| Judge | District Judge Baldwin |
| Judgment | 16 March 2026 |
| Hearing | 5 March 2026 |
| Jurisdiction | England and Wales |
| Claimant | Danion Limited, the sub-contractor |
| Defendant | IPS Roofing Limited |
| Contract | JCT standard building sub-contract dated 2 August 2023 |
| Works | Specialist scaffolding related works at a site in High Street, Southampton |
| Adjudication | Notice of adjudication 22 October 2025, adjudicator appointed 24 October 2025, referral 29 October 2025, response 3 November 2025, decision 21 November 2025 |
| Case reference | HT-2025-LIV-000002 |
| Sum enforced | 187,279.72 pounds |
Summary
A sub-contractor won an adjudicator's decision of 176,021.32 pounds excluding VAT on its Application for Payment No. 20. The contractor above it did not pay. It resisted enforcement by saying the notice of adjudication had referred a dispute about the notified sum, while the adjudicator had valued the account and decided what was truly due.
The court never reached the merits of that reading. The objection went to whether the adjudicator could embark on the reference at all, and nothing of the sort was said before the decision issued. It was waived. Two natural justice arguments also failed, and summary judgment was entered for 187,279.72 pounds.
Background and facts
The sub-contractor carried out specialist scaffolding related works at a site in High Street, Southampton under a JCT standard building sub-contract dated 2 August 2023. The right to adjudicate came from section 108 of the 1996 Act and clause 8.2 of the sub-contract conditions, with the Scheme supplying the procedure.
Application for Payment No. 20 went in on 28 July 2025 at 629,300.84 pounds. The responding valuation of 12 August 2025 put the account at 446,799.56 pounds and produced a negative payment, after deductions for delay costs, liquidated damages, disputed variations and hire charges. Notice of adjudication was given on 22 October 2025. The response of 3 November 2025 disputed the claim in full and said valid payment and pay less notices had been served. It reserved nothing on jurisdiction.
The decision of 21 November 2025 valued the application at 622,982.09 pounds gross and found 176,021.32 pounds excluding VAT due after the 446,960.77 pounds already certified. Neither the delay costs nor the main contract liquidated damages could be set against it.
The issue
The contractor said the notice was the cornerstone of the reference and had to be read for what it said. It complained of sums withheld without valid notice, so the dispute referred was about the notified sum. It also called the responding valuation number 19 when it was number 20. The adjudicator had instead valued the final account.
The sub-contractor said any reasonable recipient would have read the notice as a valuation dispute, and that the objection was in any event a threshold point which had to be reserved in the response.
The decision
The court accepted that the objection was a threshold one, going to whether the adjudicator could embark on the dispute referred at all rather than to whether an adjudicator properly seised had strayed too far. Such an objection has to be taken clearly and at the time.
The Defendant did not reserve its rights in relation to jurisdiction as a threshold issue.District Judge Baldwin, paragraph 17
In that the Defendant failed to take any such clear and appropriate jurisdictional position at the Response stage or at all prior to the giving of the decision, in my view this point must be taken to have been waived and has no real prospect of success at trial.District Judge Baldwin, paragraph 43
Waiver decided the jurisdiction ground. What followed on the notice was expressly an alternative, reached in case that finding was wrong.
If I am wrong about this, I am similarly unpersuaded by the points taken on the contents of the Notice.District Judge Baldwin, paragraph 44
On that footing the notice was the originating document, close to a statement of case. The Scheme requires no more of it than the nature and a brief description of the dispute and the redress sought.
the Notice, in my view, clearly needs to be construed as a whole, and not by microscopically focussing on individual words and phrases in isolation.District Judge Baldwin, paragraph 44
Read that way, valuation number 19 was an obvious slip for number 20. The later paragraphs moved the claim off the certified figure and onto the contractor's whole approach to deductions, and the relief sought was open ended. The contractor had itself argued the valuation of those deductions.
Two natural justice complaints remained: a reversed burden of proof imposed without inviting submissions, and rejection of the delay case for want of a link to the critical path. Neither had a real prospect of success. The first rested on a notified sum footing that did not exist. The second failed because the reply had invited that analysis, and the contractor could have answered it by rejoinder. The court added, in the alternative, that materiality had not been proved.
I have concluded that there are no real prospects of success on any of the points raised in opposition to the application and I find no other compelling reason why the claim should proceed to trial.District Judge Baldwin, paragraph 60
Practical implications
A responding party that thinks the adjudicator has been asked to decide the wrong dispute has one moment to say so, and it is the response. Name the objection and say you proceed under protest. Raise it first at enforcement and the court will not hear it.
The reading of the notice, reached in the alternative, is the ordinary one. A notice of adjudication is construed objectively and as a whole, and a wrong valuation number rarely changes what has been referred.
Two rules come out of the natural justice ground. Evidence of materiality is expected at enforcement, so a party denied a submission must say what it would have been and what it would have changed. Where the reply opens a line of analysis, answer it by rejoinder at the time.
Practice points
- Reserve jurisdiction in the response itself, at the start, in words that identify the objection and state that you proceed under protest.
- A reservation produced after the decision is worthless. The court looks at what was said before the decision was issued.
- Distinguish a threshold objection from a complaint that the adjudicator strayed. Threshold points are the ones that are lost by silence.
- Read the notice of adjudication as a whole before deciding what has been referred. A mistaken valuation number, or a similar slip, will rarely change its meaning.
- Relief expressed as the sum claimed or such other sum as the adjudicator decides to be due points to a valuation dispute, not a notified sum claim.
- Engaging with the valuation of the deductions in your response weakens any later argument that you understood the reference to be about the notified sum.
- If you complain that you were denied the chance to make a submission, put in evidence of what you would have said and what difference it would have made.
- Where the reply invites the adjudicator onto a line of analysis such as criticality, answer it in a rejoinder. A point you could have taken then will not become unfairness later.
- Enforcement in the Technology and Construction Court can be transferred out of London and disposed of by a district judge, so do not assume a long London listing.