When nomination process affects adjudication enforcement: RNJM Limited v Purpose Social Homes Limited

In RNJM Limited v Purpose Social Homes Limited [2025] EWHC 2224 (TCC), a respondent to an application for enforcement of an adjudicator’s decision by summary judgment in the Technology & Construction Court (“TCC”) successfully defended that application, on the basis of an allegedly false representation within the application form submitted to RICS for the appointment of an adjudicator. The claim for enforcement may still proceed to a full Part 7 trial. This decision shows that, while TCC enforcement remains robust and quick, it must remain within the parameters set by case law especially regarding jurisdiction. The TCC remains ready and willing to require parties to argue jurisdiction questions fully at trial if the circumstances require it, and the test for summary judgment is not met.

Background

Further to disputes arising out of a construction contract between the parties, the Claimant commenced a series of five adjudications. The Claimant abandoned the first adjudication after the first adjudicator requested security for payment of his fees. Mr Bunker was appointed adjudicator in the second adjudication, and was adjudicator in the second, third and fourth adjudications. After being unsuccessful in the third and fourth adjudications, the Claimant was ordered by Mr Bunker to make payment of his fees. Whilst there is no evidence or assertion by the Claimant that they challenged the underlying entitlements to the amount of fees, the Claimant did not pay them. 

Consequently, Mr Bunker threatened legal action against both the Claimant and Defendant. Knowing it was jointly and severally liable for the fees, the Defendant paid up. 

After giving notice of adjudication in respect of the fifth adjudication, the Claimant submitted an application form to RICS to seek the appointment of an adjudicator. The application form was prepared and submitted by the Claimant’s representative, Mr Birchall. The Claimant included on the application form that there was a conflict of interest between the Claimant and Mr Bunker, with the reason being a “Dispute over payment with Referring Party”. Whilst the Defendant objected to this statement and informed RICS that, in the Defendant’s view, there was no conflict of interest, RICS proceeded to appoint another person other than Mr Birchall as adjudicator in the fifth adjudication.

The Defendant sought to resist summary enforcement of the fifth adjudication decision in the TCC, because they argued that the adjudicator lacked jurisdiction. The basis of that argument is that the application for a nomination by RICS was invalid, and thus the appointment a nullity, because the Claimant’s application for a nomination by RICS was tainted by a “deliberately or recklessly… false statement… in order to seek an advantage”, i.e. that Mr Bunker was conflicted.

Issues for determination

The parties agreed the issue for determination was whether the Defendant has a real prospect of successfully arguing that the Claimant either deliberately or recklessly made a false statement in the process of applying to the RICS for the appointment of an adjudicator for the fifth adjudication.

To establish this, it was necessary to consider the following: - 

1. What was the information provided by the Claimant to the RICS asserting that there was a dispute between the Claimant and Mr Bunker? There was no dispute about the information provided, however there was no further information provided at or around the time the dispute was referred relating to the alleged conflict of interest.
2. Was the information provided false or, in other words, do the facts relied upon establish a dispute between the Claimant and Mr Bunker?
3. Was the false information given either deliberately or recklessly as to its truth?

There was a significant lack of information provided by the Claimant to RICS when asserting there was a dispute. Despite the Defendant’s numerous requests for the Claimant to provide further information relating to the alleged conflict of interest, the Claimant chose not to answer, nor provide any evidence about the nature of the dispute they sought to be a conflict of interest (until the enforcement proceedings). 

The RICS guidance not only states to provide “clear reasons” for potential conflict, but it also highlights the decision in Eurocom Ltd -v- Siemens Plc [2014] EWHC 3710 (TCC) to the effect that “misrepresentation in this statement could void the process in its entirety”. It is relevant that there was no evidence to suggest Mr Birchall (representing the Claimant) warned the Claimant of this consequence. 

Despite Mr Bunker having no fee dispute with either party once being paid, Mr Birchall asserts he had a “genuine belief” there was a conflict of interest as Mr Bunker’s pursue of payment of his fees “constituted a risk that there would be a perception of apparent bias against the Claimant”. Based on the RICS guidance, Mr Birchall formed the view that if he was mistaken about the potential conflict stated on the adjudication form, RICS would “make their own independent decision” as to the nomination of adjudicator and would disregard the representation of Mr Bunker if necessary. 

The Defendant also asserted there would in any event be a breach of an implied term to act honestly and transparently in respect of the nomination process when seeking an adjudicator. 

Decision

The Judge held that, even after the Claimant filed evidence in support of its position for the purposes of the summary judgment application, “it remains the situation that the Claimant has never set out any adequate explanation as to why it asserts that there was a dispute” with Mr Bunker. Failure to provide adequate evidence to establish that, together with a failure to provide an explanation for the Claimant’s reasoned basis for believing there was such a dispute, saw that HHJ Kelly had no hesitation in finding that the Defendant had a realistic prospect of successfully arguing the various points raised. Therefore the Judge refused the Claimant’s application for summary judgment. 

Having made that finding, it was not necessary to consider whether the there was an implied term to act honestly during the nomination process when making a referral to adjudication.

The Judge’s decision did not mean that (i) HHJ Kelly came to any final concluded view about whether either party was right about the contents of the RICS application form, or any jurisdiction argument; nor (ii) that the fifth adjudication cannot be enforced; but rather that the consequence is that the Claimant’s application for summary judgment, normally the well-established route for quick enforcement of an adjudicator’s decision in the TCC, has been denied. The Claimant remains able to pursue their enforcement claim to a full trial within the TCC, at greater expense and at a slower pace. A Claimant in that position is likely to be required to pay the Defendant’s legal costs of the initial summary judgment application. No final order addressing the consequences of the application is currently available; in the Eurocom case, the party that failed in its summary judgment application by reason of prima facie allegations of fraudulent misrepresentation was required to pay the other party’s legal costs of the application on the indemnity basis. 

Comment

This decision provides a cautionary tale about completion of an application form for nomination by a nominating body.

Not only must parties provide sufficient information in respect of an asserted conflict of interest when applying to a nominating body, but parties must also act openly and honestly in their applications and maintain transparency  with clients regarding the possible outcome if a potential conflict is not justified. 

Whilst adjudication remains a robust and time-sensitive process to resolve disputes, enforceability can be affected by the parties’ conduct. In order to preserve the integrity of adjudication enforcement and to avoid the use of the TCC process to enforce the potentially unenforceable, the Court will hear a Defendant party out where there is a credible case to resist enforcement, and the threshold for summary judgment is not met. This applies, as here, where there was an allegation of false representation to the nominating body, which the Claimant could not defeat so as to satisfy the summary judgment test, but applies similarly to the other narrow, but important, bases for resisting enforcement by the TCC. Unlike in adjudication, where parties bear their own legal costs, a party applying for summary judgment in the TCC can also face adverse costs consequences, including an order for indemnity costs, making enforcement in such circumstances a slow and costly process.

For further information, please contact Kathryn Kligerman, William O'Brien or Holly Mason.