Clegg Food Projects Limited v Prestige Car Direct Properties Limited [2025] EWHC 2173

The August break is reserved by the Technology and Construction Court for “applications of real urgency [to] be dealt with”[1]. In a summer where the Court has been keen to re-etch its line in the sand as regards honouring The Housing, Grants and Regeneration Act 1996[2], it is unsurprising that the Court considered Clegg Food Projects Ltd v Prestige Car Direct Properties Ltd  should be used to provide an urgent reminder of the limited grounds available to resist the enforcement of an Adjudication decision. Unfortunately for Prestige, Her Honour Judge Kelly did not consider enforcement proceedings (and the grounds for resisting the same) should be used as an opportunity to ‘row back’ on the broad jurisdiction afforded to an Adjudicator.

Brief Background

Prestige employed Clegg under a JCT Design and Build Contract for the construction of a leisure and retail centre. A dispute arose in respect of the valuation of Clegg’s application for payment. Specifically, the value of eight variations were disputed within the application, as was Clegg’s entitlement to extensions of time.

Clegg referred the dispute to adjudication and nominated a Chartered Quantity Surveyor. Both parties agreed that, when deciding a valuation, the adjudicator should use the gross valuation sum “or such other sum as the adjudicator may decide”. 

The adjudicator decided that Prestige’s payment notice had undervalued the sum due to Clegg in respect of the eight changes. Prestige was ordered to pay Clegg £541,880.12 plus VAT. The adjudicator used his own “fair and reasonable” rate to consider the value of the eight changes. The adjudicator explained that, under the instructions provided by the parties, he had jurisdiction to determine his own rate:  

“The Parties have asked me to use the information provided by them and my own experience, to determine the values of the items in dispute, which process may include accepting one or other of the Parties’ valuations or forming one of my own”.[3]

Prestige failed to pay the adjudication award, leading Clegg to seek summary judgement to enforce the adjudicator’s decision. 

Prestige submitted that it was a breach of natural justice for the adjudicator not to seek additional submissions from the parties to the adjudication in respect of the “fair and reasonable rate” which was applied.

Clegg submitted that:

• the adjudicator was entitled to use his discretion when providing a valuation;
• the adjudicator’s use of discretion was not of considerable importance to the outcome of the adjudication; and
• in any event, the rates used by the adjudicator resulted in a decision more favourable to Prestige than if the adjudicator had adopted Clegg’s rates. 

Components of Natural Justice

Parties are usually bound to an adjudicator’s decision unless they can prove that the adjudicator has breached natural justice by acting unfairly or with bias in reaching a decision. 

Any breach must be material to the outcome of the adjudication. Additionally, the aggrieved party must establish that, where the adjudicator has failed to bring an important point to the parties’ attention, that they should have been consulted. This will typically only be the case where an adjudicator decides a case upon a factual or legal basis which has not been argued by either side[4]. These criteria were not satisfied in Clegg v Prestige.   

Summary of Findings

HHJ Kelly granted summary judgement and rejected Prestige’s arguments on the basis that:

• The adjudicator had been invited by both parties to award “such … sums as the adjudicator shall see fit”[5]. Prestige had expressly invited the adjudicator to use his discretion but were now claiming that the use of this discretion was a breach of natural justice. The adjudicator was therefore within his remit to come to a different view to the parties in respect of the value of a particular item which he considered “fair and reasonable” using the submissions made by the parties. 
• The adjudicator was not required to consult the parties on every element of his thinking, even if elements of his reasoning are derived from, rather than expressly set out in, the parties’ submissions[6]. The adjudicator was also not obliged to seek further submissions relating to his adopted rate as the parties had already provided the adjudicator with the materials required to decide the appropriate valuation.
• Prestige had accepted that the adjudicator could have simply accepted either party’s proposed valuation or split the difference without consulting the parties. The adjudicator’s adopted rate was arguably more advantageous to Prestige than if the adjudicator had used Clegg’s proposed valuation or split the difference, neither of which would breach natural justice[7]. 
• Any breach was not material or of enough importance as to constitute a breach of natural justice[8]. The TCC would only consider a breach of natural justice to be sufficiently serious in exceptional cases[9]. 

Concluding Thoughts

Absent there being issues in an Adjudicators’ decision of jurisdiction (the scope of what the adjudicator can determine), natural justice (bias or unfairness), or procedure (obvious errors), parties to an adjudication are bound by the adjudicator’s decision[10].

Where an Adjudicator is afforded a wide jurisdiction to determine a dispute and has both the technical capacity and factual materials to enable them to make a declaration, then a party is unlikely to be able to resist enforcement of an adjudicator’s decision.

If you have any queries relating to the decision, contact James Mapley, Will O’Brien, or John O’Mahony.