Essential Living (Greenwich) Ltd v Conneely Facades Ltd [2024] EWHC 2629 (TCC)

23rd Oct 2024

Case Summary

Mathias Cheung successfully represented the Claimant (“Essential Living”) in the TCC in its application for summary judgment to enforce an adjudication decision of Mr. Peter Aeberli regarding façade defects at a mixed-use development at Greenwich Creekside in London (“Project”).

The Project has been the subject of previous adjudications with other trade contractors such as Elements (Europe) Ltd (“Elements”), which gave rise to the Part 8 decision of O’Farrell J in Essential Living (Greenwich) Ltd v Elements (Europe) Ltd [2022] EWHC 1400 (TCC) (in which Mathias Cheung also successfully represented Essential Living).

During the adjudication before Mr. Aeberli, the Defendant (“Conneely”) requested the disclosure of documents relating to Essential Living’s prior adjudication against Elements. That request was founded on assertions by Conneely that the Elements adjudication dealt with balcony defects which could have impacted on the facades, such that those documents are relevant on causation and may also demonstrate an attempt at double recovery.

The adjudicator rejected the request for disclosure initially, but directed Essential Living to disclose certain documents from the adjudication at a later stage, and Conneely in any event obtained copies of those adjudication documents unilaterally before such disclosure was provided. In the end, the adjudicator rejected Conneely’s case and found in favour of Essential Living on liability and quantum for the façade defects.

Conneely raised the issue of apparent bias during the adjudication, on the basis of the adjudicator’s observation that “[t]he suggestion of double recovery is fanciful” when rejecting Conneely’s disclosure request. Conneely then resisted enforcement of the adjudication decision on the same basis by alleging a breach of natural justice.

Essential Living’s position was that the adjudicator was entitled to make that procedural ruling, and that he clearly kept an open mind and considered all of the parties’ evidence and submissions before reaching his final decision. In any case, Essential Living contended that Conneely has waived its objection by paying the adjudicator’s fees without any reservation of rights.

Decision

Deputy High Court Judge Adrian Williamson KC granted summary judgment in favour of Essential Living. He concluded at [20] that: the adjudicator’s disclosure ruling “was not a breach of the rules of natural justice, let alone a serious breach”, as the adjudicator “at every stage left the door fully open to Conneely to pursue both the Mastrandrea materials and the causation and double recovery points”, and even if there were a breach, “it did not make a material difference to the outcome” because Conneely eventually abandoned the double recovery point.

The Judge also found at [24], in the alternative, that “the payment of the adjudicator’s fees without reservation did amount to a waiver of the natural justice objection” because Conneely was “well aware of the objection they have previously made and yet they paid the fees without reservation”.

Finally, the Judge awarded costs on the indemnity basis at [29] because “unmeritorious points have been raised, which has caused the considerable delay in payment of the sums due”, and it was “wholly inappropriate” to attack the conduct of a very experienced adjudicator.

Comment

This is another example of the TCC adopting a robust approach in enforcing adjudication decisions and rejecting attempts by disgruntled defendants to re-run points already rejected in an adjudication under the guise of a natural justice argument. The threshold for establishing apparent bias in an adjudication context remains a very high one.

Further, parties should tread carefully when paying an adjudicator’s fees before challenging enforcement, and must properly reserve their positions when doing so in order to avoid waiving jurisdictional or natural justice objections which are already known during the course of the adjudication.

Mathias Cheung was instructed by Taylor Wessing LLP.

You can read the full judgment here.





Subscribe Now

Sign up now to receive our latest news, legal insights and information on upcoming events.

 

Subscribe

Related Juristictions