UK: Using Part 8 Can Be Used To Challenge A Wrong Adjudicator's Decision: But Care (And Speed) Needed

Last Updated: 20 August 2019
Article by Gurbinder Grewal, Tracey Summerell and Michelle Francis

It can be tempting for a "losing" party in adjudication to defend itself against the winner's enforcement proceedings by arguing that the adjudicator got it wrong. Hard as it is to ignore apparent errors, such parties must remember that adjudicators' decisions - even if wrong - are binding until a court or arbitrator gives a final decision. In the meantime, the losing party must live with the decision and pay up – or face enforcement and additional costs.

Adjudication is founded on the "pay now, argue later" "principle" under which an adjudicator's decision will be enforced (even if wrong) unless the adjudicator exceeded its jurisdiction or acted in breach of natural justice. In essence, a quick answer is more valuable than the right answer: adjudication is a quick and interim solution.

This occasional "rough justice" is the price paid by the industry to keep cash flowing and businesses in the black. Parties who think the adjudicator got it wrong, must take the issue to court or arbitration for a final decision on the issue if they cannot accept the adjudicator's decision. They can only resist enforcement (by applying for declaratory relief under Civil Procedure Rules (CPR) Part 8), if they can establish a breach of natural justice or an adjudicator acting beyond its jurisdiction.

However, parties who want a final court or arbitration decision on a specific legal or contractual issue do not always have to wait for the outcome of full-blown litigation or arbitration proceedings. The quicker, Part 8 procedure is also available to those who want a court decision on a discrete legal issue involving few disputed facts - such as the interpretation of a contract or a question of law.

Hutton guidance on using Part 8

Following a spate of parties using Part 8 inappropriately to resist enforcement applications, the Technology and Construction Court (TCC) issued guidance on the use of Part 8 in Hutton Construction Ltd v. Wilson Properties (London) Ltd [2017] EWHC 517 (TCC).

The Hutton guidance emphasised the Construction Act's aim to keep project cash flowing which is achieved in part by the binding nature of an adjudicator's decision.

Exceptionally, the court might agree to review, under the Part 8 procedure, an issue arising from an adjudicator's decision which involves a short and self-contained point, requires no oral evidence or other elaboration and is suitable for a relatively short interlocutory hearing. Hutton makes clear that:

  • the parties can agree to the court dealing with a discrete point in enforcement proceedings either in a Part 7 enforcement application or in a Part 8 request for a court declaration;
  • however, while allegations of a breach of natural justice or a jurisdictional challenge should be dealt with by Part 8, a losing party which uses Part 8 to challenge the enforcement proceedings and ask the court to review an alleged error in the adjudicator's decision, risks being sanctioned with indemnity costs unless the issue is "clear cut". Examples of such errors were given, including where: the adjudicator's construction of a contract clause is beyond any rational justification, the calculation of the relevant time periods is obviously wrong, or the categorisation of a document is clearly wrong. (See Hutton, paragraph 18.)

Many thought that Hutton effectively prevented losing parties from using Part 8 to obtain a court review of an error in an adjudicator's decision. However, a new decision in Willow Corp Sarl v. MTD Contractors Ltd [2019] EWHC 1591 (TCC) by HH Honour Judge Pepperall indicates that the TCC is still willing to hear Part 8 applications that challenge wrong decisions in certain cases.

What happened in Willow Carp Sarl v. MTD Contractors Ltd?

In September 2015 MTD entered into a JCT Design and Build Contract with Willow to build the 150- bedroom, 7-storey Nobu Hotel in Shoreditch for £33.5 million. The project was delayed and the parties agreed a plan for the phased handover of the hotel in February 2017. MTD claimed loss and expense and, in June 2017, the parties discussed these claims and agreed a date for practical completion of 28 July 2017. That date was not met. Several adjudications followed which dealt with a claim by Willow for liquidated damages and MTD's claims for loss and expense.

At the third adjudication decision in December 2018, the adjudicator was asked to interpret the terms of the June agreement. He decided that this agreement had redefined the terms relating to practical completion and imposed an obligation on MTD to complete the works by 28 July 2017. Willow was not entitled to liquidated damages for MTD's delay in completing work on the hotel after that date and owed £1,174.854.72 to MTD.

Willow did not pay. Instead, it issued a Part 8 application in December 2018 seeking court declarations on the proper construction of the June 2017 agreement, that practical completion had not been achieved by 28 July 2017 and that the adjudicator's decision was unenforceable because of various breaches of natural justice.

MTD later issued an application to enforce the adjudicator's award by way of summary judgment under separate Part 7 proceedings.

The court's view in Willow

Pepperall J allowed Willow's Part 8 application to be heard alongside MTD's Part 7 enforcement application. He decided that the adjudicator's interpretation of the June agreement was wrong and Willow was entitled to claim liquidated damages. His reasoning was as follows:

  • Willow had acted proactively and issued the Part 8 application ahead of MTD's enforcement application to seek declaratory relief: it was not using the Part 8 application to resist MTD's Part 7 enforcement by summary judgment but as a means to obtain a final decision of the court on the issue;
  • of the various declarations sought by Willow under Part 8, only the construction issue [of the June agreement] was suitable for determination under Part 8 (on the basis of the Hutton guidelines). That issue involved a discrete point, required little evidence of fact and was not a mechanism to resist MTD's Part 7 enforcement proceedings.

The remaining claims relating to the alleged breaches of natural justice, were not appropriate for Part 8 determination - those questions as to enforcement were best dealt with in the Part 7 proceedings.

Act quickly!

It seems Hutton is not quite as strict a restriction on the use of Part 8 as we thought. Willow indicates that TCC judges are willing to deal with errors in adjudication decisions provided they are discrete issues, reasonably obvious and clear cut and capable of being dealt with in a short hearing with little evidence. Parties should, however, act quickly in seeking a final declaration under Part 8. Any delay could affect the chances of success.

Severing the good from the bad

Another interesting aspect of the Willow judgment was the court's sensible and practical approach to the remaining "good" elements of the adjudicator's decision. It allowed the wrong element of the adjudicator's decision to be severed from the good. While acknowledging that a breach of natural justice could undermine the whole of an adjudicator's decision, where it was possible to safely enforce the good elements of the decision, the court should sever those that were wrong. This holds true even where only one dispute has been referred to adjudication.

Sympathy for adjudicators: they're not judges or arbitrators!

The court had a good deal of sympathy with adjudicators, the majority of whom are not chosen for their legal expertise, but who are obliged to reach a decision on complex issues of law: "the task of the adjudicator is not to act as arbitrator or judge. The time constraints within which he is expected to operate are proof of that. The task of the adjudicator is to find an interim solution which meets the needs of the case. Parliament may be taken to recognise that, in the absence of an interim solution, the contractor (or sub-contractor) or his sub-contractors will be driven into insolvency through a wrongful withholding of payments properly due."

Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Fenwick Elliott LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Fenwick Elliott LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions