Cantillon Ltd v Urvasco Ltd [2008] EWHC 282 (TCC)

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Where an adjudicator’s decision simultaneously addresses two or more issues, one of which has been arrived at within jurisdiction and the rules of natural justice, and one or more of which has been arrived at outside jurisdiction and/or the rules of natural justice, the court will in certain circumstances allow the decision to be severed to allow a part of it to be enforced.

Technology and Construction Court, Akenhead J


The defendant (“Urvasco”) engaged the claimant (“Cantillon”) to carry out demolition, piling and other works pursuant to a JCT Standard Form of Contract Private Without Quantities 1998 edition.  Disputes arose between the parties concerning Cantillon’s claimed entitlement to an extension of time, and in particular to two claims, one for 16 weeks and one for 13 weeks, together with related loss and expense.  A dispute comprising these two claims was submitted to adjudication.  The 13 weeks claim arose from a variation requiring additional piling work. In the adjudication Cantillon calculated its loss and expense in respect of this claim by reference to a specific period of time, 23 April to 16 July 2006.  Urvasco argued that the piling need not have taken as long as it did, that the variation did not cause a delay because the critical path ran through other areas and work, and that as Cantillon had quantified the claim by reference to a specific period of time, there was no loss recoverable for any later period when the piling works were actually done.  In his decision, the Adjudicator held that Cantillon was entitled to 9.71 weeks extension of time in respect of the piling variation and he assessed the loss and expense by reference to the period in which, in his view the works were critically delayed by the variation, which was a later period than that in respect of which Cantillon had claimed in the adjudication.  The Adjudicator awarded Cantillon £400k.  One fifth of this award related to the claim for 13 weeks.  Urvasco refused to pay up and Cantillon subsequently sought to enforce the decision by means of summary judgment.


The Court addressed the following issues:

  • Whether the Adjudicator had jurisdiction to address any issue relating to delay / prolongation costs with regard to the 13 weeks claim other than the specific period of 13 weeks identified by Cantillon.

  • Whether the Adjudicator had failed to give Urvasco a reasonable opportunity to make submissions in relation to the amount of costs being incurred in the later period, and accordingly whether there had been a breach of the rules of natural justice.

  • In the event that the Court found that part of the Adjudicator’s decision was arrived at improperly but that another part of his decision was sound, whether the “bad” part could be severed from the rest of the decision, and the “good” part enforced. 


The Court held:

  • A challenge to an adjudicator’s decision on the grounds of jurisdiction or natural justice must be plain, clear and relatively comprehensible.  The Court should not take an over-analytical approach to questions of jurisdiction and natural justice arising in adjudications under the Construction Act.

  • The Adjudicator had acted within his jurisdiction.  Once Urvasco had raised the arguments that it did, the Adjudicator’s jurisdiction with regard to the 13 weeks claim extended to addressing them and their consequences.  Thus, he was required to rule on what overall (if any) critical delay was caused by the additional piling, and when and what, if any, losses flowed.

  • Any breach of the rules of natural must be material.  On the facts of the present case there had been no such breach.  Detailed records and other documentation about all the prolongation heads of cost was provided in the adjudication by Cantillon for the whole or virtually the whole of the contract period up towards the end of 2006.  The Adjudicator was acting within his jurisdiction and did not mislead the parties as to what he was or was not going to do.  Urvasco had had the opportunity to address the quantum ramifications of there being a delay finding which reflected its own assertion that any prolongation occurred during the later period but decided not to do so.  

  • Accordingly summary for the full amount of the Adjudicator’s award would be given.  Although it was not therefore necessary to consider the issue of severability, the Court drew the following conclusions:

      • In ascertaining whether a decision is severable the first step must be to ascertain what dispute or disputes has or have been referred to adjudication.  One needs to see whether in fact there is only one dispute what it comprises.

      • A party to an adjudication agreement may refer more than one dispute to an adjudicator, provided (a) there is no objection by the other party or (b) the contract permits it.  In that case adjudicator will have to resolve all referred disputes and differences.

      • If the decision properly addresses more than one dispute a successful jurisdictional challenge on that part of the decision which deals with one such dispute will not undermine the validity and enforceability of that part of the decision which deals with the other(s).  The same approach applies to cases where there is a non-compliance with the rules of natural justice.

      • However, if the decision as drafted is simply not severable in practice, for instance on the wording, or if the breach of the rules of natural justice is so severe or all pervading that the remainder of the decision is tainted, the decision will not be enforced.

      • In all cases where there is a decision on one dispute, and the adjudicator acts materially in excess of jurisdiction or in breach of the rules of natural justice, the Court will not enforce the decision.

      • On the facts of the present case, if the Court had found that there had been a material breach of the rules of natural justice, it would have severed the adjudicator’s award and given judgment in favour of Cantillon in respect of all other parts of the award which could be said with confidence were unrelated to and untainted by any such breaches.

This summary was provided by CMS Cameron McKenna LLP.

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