BELLWAY HOMES LTD v SURGO CONSTRUCTION LTD

[2024] EWHC 269 (TCC), Technology and Construction Court, His Honour Judge Stephen Davies sitting as a High Court Judge, 12 February 2024

Validity of appointment of adjudicator – Time frame for appointment – Selection from employer panel – Whether inference of bias – Jurisdiction to order repayment of overpayment under interim payment

The claimant sought to enforce the decision of an adjudicator. The defendant sought to resist enforcement on two principal grounds. The first concerned the contractual machinery for the appointment of an adjudicator which, it submitted, would take more than the permitted seven days (given that adjudicators on the panel were given a two-day period on which to decide whether or not to accept appointment). This submission was rejected and a pragmatic approach was taken towards the contractual timetable. Given the obligation of the parties to co-operate in the operation of the contractual timetable, and the fact that there were only three adjudicators on the panel, it was found to be "inherently unlikely" that all three would refuse to act and would take the full two days in which to inform the parties of their decision. In this respect it was held to be "very different" if the list consisted of 10 adjudicators and each was given up to five days in which to respond.