In BDP Construction Limited v Cygnet Behavioural Health Limited [2026] EWHC 1796 (TCC) Mr Justice Constable granted the Claimant’s application for summary judgment, enforcing an adjudicator’s award and resulting in payment to the Claimant of over £140,000.00. However, before deciding to do so, Cygnet challenged the enforcement on grounds that the adjudicator lacked the jurisdiction to make the decision he had.
By way of background, BDP was asked to undertake construction works for Cygnet in respect of its new hospital in Wolverhampton. The hospital was completed and BDP asked for payment of the retention sum (c.£170,000.00). Cygnet refused and instead requested payment of c£180,000.00 for alleged liquidated damages for late completion and defects. The dispute was referred to adjudication.
One of the arguments in the adjudication was the notice for liquidated damages issued by Cygnet was defective in that it contained the wrong amount for liquidated damages (ironically, BDP said it should be £14,500.00 per week, whilst Cygnet said it should be what it had stated; £1,000.00 per day). The adjudicator found that neither party had provided sufficient evidence on the point and so liquidated damages were not awarded. He went on to award the majority of the retention sum, less a figure for some of the alleged defects.
Cygnet didn’t pay, and so BDP sought to enforce the decision in the High Court (TCC). The matter went before Mr Justice Constable, the Judge in charge of the TCC. Cygnet argued that there had been agreement between the parties that liquidated damages applied and that it was either £14,500.00 pw or £1,000.00 pd. The adjudicator therefore had to decide whether it was one or the other. It relied upon an analogy that the parties had said a building was either red or yellow, it was therefore the adjudicator’s job to decide which one. Cygnet argued it was not open to the adjudicator to conclude the building did not exist.
BDP disagreed and argued it was the opposite; neither party accepted the others as a secondary position, they rejected it. Further, using the same analogy, the adjudicator had not concluded the building did not exist, only that the evidence of its colour had not discharged the evidential burden by either party.
Mr Justice Constable found in favour of BDP; there was no agreement between the parties that it was either £14,500.00 pw or £1,000.00 pd (a binary option) limiting the adjudicator’s jurisdiction. Nor was the rejection of the evidence from both parties a decision in excess of his jurisdiction or a breach of natural justice. There had been no concluding that the building did not exist, only that the evidence didn’t support either party’s position on the point.
The case highlights the nuance between the parties agreeing a fact which an adjudicator cannot go behind on the one hand, and parties arguing a limited scope of outcomes for which the adjudicator is tasked with deciding, on the other.
The approved judgment can be found here.
Adam Beaumont was ably assisted by Neil Kelly and Beth Bainbridge at MD Law.
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