Mathias Cheung successfully enforces adjudication decision and resists Part 8 claim in Clerkenwell Lifestyle (UK) Ltd v HG Construction Ltd [2026] EWHC 1406 (TCC)

Mathias Cheung acted successfully for the Part 7 Claimant / Part 8 Defendant in Clerkenwell Lifestyle (UK) Ltd v HG Construction Ltd [2026] EWHC 1406 (TCC). This is a Part 7 claim for the enforcement of an adjudication decision of Mr Matthew Molloy on a delay dispute, heard together with a Part 8 claim brought by the Part 7 Defendant / Part 8 Claimant for declarations that there was a binding agreement to extend the completion date and that the adjudication decision should be set aside. The TCC rejected the allegations of breach of natural justice and the Part 8 claim for declarations, and granted summary judgment to enforce the adjudication decision.

Background

The underlying dispute between the Employer (“Clerkenwell”) and the Contractor (“HG”) concerns competing claims for extensions of time (“EOTs”) and liquidated damages (“LDs”) in respect of the design and construction of a new 153-room hotel (“Hotel Section”) and 9 new-build affordable apartments (“Residential Section”) at 18 Vine Hill / 15–29 Eyre Street Hill, Clerkenwell, London EC1R 5LB (“Project”), under an amended JCT Design and Build Contract 2016 dated 22 December 2021 (“Contract”).

After entering into the Contract, the parties entered into a further Supplemental Agreement dated 11 January 2022 which revised the Sectional Completion Dates for the Residential Section and the Hotel Section.

During the course of the Project, the Employer’s Agent, Avison Young (“AY”), granted EOTs and revised the Sectional Completion Dates on two occasions. In particular, there was an exchange of email correspondence between December 2022 and February 2023 discussing the delays on the Project and also the delays experienced in a separate but related office contract (“Office Contract”). In the event, on 8 February 2023, AY confirmed by email that (among other things):

• A 10-week EOT would be granted under the Office Contract based on a number of conditions, and

• A 12-week EOT to the Residential Section and the Hotel Section would also be granted under the Contract to account for exceptionally adverse weather conditions and strike actions.

In relation to the EOT for the Residential Section and the Hotel Section under the Contract, HG in fact made an EOT application in writing to AY on 8 December 2022 (referencing clause 4.21.1 of the Contract on claims for loss and/or expense), and on 9 February 2022, AY issued a formal “Notification of Extension of Time” which awarded a 12-week EOT and revised the Sectional Completion Dates under clause 2.25 of the Contract.

After the completion of the Project, the parties remained in dispute as to the extent of Clerkenwell’s entitlement to LDs and HG’s entitlement to EOTs. In November 2025, Clerkenwell referred a dispute to adjudication, seeking declarations to the effect that no further EOTs should be granted and that Clerkenwell should be entitled to further LDs.

In the Referral Notice, Clerkenwell’s position was that “AY has significantly over-awarded HG EOT on the Project”, but it was not asking the Adjudicator to fix Sectional Completion Dates which were earlier than those fixed by AY. HG’s case during the adjudication was (among other things) that time had been set at large due to the resequencing of the works / sections, and that it was in any event entitled to further EOTs based on a number of other Relevant Events.

In his adjudication decision dated 5 January 2026 (“Decision”), Mr Matthew Molloy (“Adjudicator”) decided that there were five excusable causes of delay which entitled HG to 186 days of EOT for the Residential Section and 123 days of EOT for the Hotel Section. On this basis, the Adjudicator fixed the revised sectional completion dates as 12 November 2023 for the Residential Section and 21 October 2023 for the Hotel Section, and awarded further LDs in the net sum of £955,943.43 to Clerkenwell.

HG refused to comply with the Decision and contended that the Adjudicator should have added the further EOTs to the revised Sectional Completion Dates previously fixed by AY, because the parties had in fact reached a contractually binding agreement as to the 12-week EOT based on the email exchanges in February 2023.

HG commenced a Part 8 claim seeking declarations to the effect that there was a binding agreement on the 12-week EOT, and that the Adjudicator’s Decision erred in law / in fact and should be set aside. At the same time, Clerkenwell also commenced a Part 7 claim to enforce the Decision, and HG resisted enforcement on the basis that the Adjudicator acted in excess of his jurisdiction and/or in breach of natural justice by ignoring the alleged binding agreement on the 12-week EOT.

The parties agreed that the Part 7 enforcement claim and the Part 8 claim for declarations should be consolidated, and the two claims were heard together at a full-day hearing in the TCC before Jefford J.

Decision

In a detailed judgment, Jefford J rejected HG’s jurisdictional / natural justice argument and Part 8 claim for declarations and granted summary judgment in favour of Clerkenwell to enforce the Adjudicator’s Decision.

First, in relation to Clerkenwell’s Part 7 enforcement claim, Jefford J held at [59] that “there is nothing in the arguments advanced by HG as to lack of jurisdiction and/or breach of natural justice” for the following reasons:

• The dispute referred to adjudication was expressed in broad terms as a dispute as to the completion dates, Clerkenwell’s entitlement to LDs, and HG’s entitlement to EOTs. HG engaged with exactly that dispute in the adjudication: see [60].

• It is clear that a pre-requisite to any argument that there has been a breach of natural justice as a result of a failure to consider a material defence is that that defence, or the matters constituting that defence, has been raised: see [68].

• HG did not in fact contend during the adjudication that there was a binding agreement of the parties as to revised completion dates or that the Adjudicator was bound by such an agreement. HG did not seek any declarations to that effect in its Response, and the reference to the February 2023 email was merely in the context of the “time at large” argument: see [61] and [70]-[74].

• Further, the suggestion that there was a binding agreement as to revised completion dates was wholly inconsistent with HG’s own delay expert evidence in the adjudication, which did not refer to any binding agreement as part of his instructions and instead used as his baseline programme the original programme leading to the original contractual completion dates: see [76].

• Clerkenwell’s case in the adjudication was that AY had in fact granted longer EOTs than HG was entitled to, and it did not say that it did not seek to renege on a binding agreement reached on 8 February 2023. Both parties asked the Adjudicator to decide the EOTs that should be granted having regard to the whole of the period of the works, and that was what he did: see [79].

Second, as to HGs Part 8 claim, Jefford J held at [94] that “there was no binding agreement made on 8 February 2023” and declined to make the declarations sought by HG for the following reasons:

• Although the emails in December 2022 and February 2023 used the language of agreement, the word “agree” was being used in the sense of being prepared to or willing to do something rather than indicating an intention to enter into a legally binding agreement: see [82].

• Looking at the factual context, the parties were agreeing how they would operate the contractual mechanism and not that they would enter into some free-standing and binding agreement to revise the completion dates: see [83] and [91].

• Moreover, the proposals in the February 2023 email were far more complex than just an agreement on a 12-week EOT, and some of these proposals were expressed in terms that were clearly not intended to lead to a binding agreement: see [87]-[88].

• If there were intended to be a binding agreement, it was one lacking in clarity. It was unclear, for instance, whether it remained open to HG to claim a further EOT relying on the four Relevant Events relied on in the HG’s December 2022 EOT claim or whether any such claim was compromised by the alleged agreement: see [90].

• Subsequent conduct may be relied upon as evidence of whether there was a contract and what its terms were, and in this case, neither party conducted itself as if there was a binding agreement as to revised completion dates rather than an extension of time granted under the contract: see [93].

• The Privy Council’s recent decision in Uniform Building Contractors Ltd v The Water and Sewerage Authority of Trinidad and Tobago [2026] UKPC 2 also offers support for the view that clauses defining the authority of the Employer’s Agent are not to be read as granting authority beyond their specific terms such as to allow the Employer’s Agent to make a contract or depart from the concluded contract: see [96]-[101].

Finally, Jefford J observed at [102] that as the dispute between the parties as to whether the agreement alleged by HG lacked consideration, that issue would have involved a factual inquiry which was well beyond the scope of the Part 8 proceedings and might have led the Court to conclude that the matter was not suitable for determination in these proceedings.

Mathias Cheung was instructed by Trowers & Hamlins LLP and acted for the successful Part 7 Claimant / Part Defendant.

Read the full judgment here.