Dorchester Hotel Ltd v Vivid Interiors Ltd [2009] EWHC 70

This summary was provided by CMS Cameron McKenna LLP.

For more information visit


The TCC has jurisdiction to intervene in ongoing adjudications to prevent breaches of natural justice, but should use this jurisdiction extremely sparingly and only in clear-cut cases.  The mere use of “ambush” tactics will not justify such intervention.

Technology and Construction Court, Mr Justice Coulson


The Dorchester engaged Vivid to refurbish its hotel.  In March 2008, 6 months after completion, Vivid produced a draft final account in the approximate gross sum of £4.39m, with further documentation to follow.  Documents were provided piecemeal between May and October, changing the sum.  The sum had changed again on 12 December, when Vivid commenced adjudication proceedings in respect of the final account.  The Referral Notice was served on 19 December; it contained numerous heads of claim.  It was 92 pages long and was accompanied by 37 files of supporting documents.  5 of these files contained material that was entirely new to The Dorchester and most of the individual claim figures had changed since the draft final account was issued in March. 

The Adjudicator accepted the reference on condition that the holiday period would be disregarded when calculating the 28 days.  This extended the time for completion of the adjudication to 28th January 2009.  Although the Adjudicator considered that this allowed him a sufficient period to decide the matter, Vivid accepted that the period was too short and proposed a timetable that included an additional month. However, Vivid made it clear that it would not agree to any further extension of the adjudication timetable.


While the adjudication proceedings were still on foot, The Dorchester issued court proceedings in which it sought declarations that:

  • the present timetable posed a serious risk of a breach of natural justice because it prevented The Dorchester from having a reasonable opportunity to review Vivid’s documentation and thus to be heard in answer to the dispute, which in turn prevented the Adjudicator from deciding the case impartially and fairly;
  • unless the parties agreed a realistic timetable any decision of the Adjudicator would be in breach of natural justice and thus unenforceable; and
  • the Adjudicator was entitled to resign the reference if the timetable was not extended.


Coulson J held that the TCC had jurisdiction to make declarations if it considered there had been or would be a breach of natural justice which would have a significantly prejudicial effect on the responding party; it was sensible and appropriate for parties to a fundamentally flawed adjudication to have recourse to the TCC before significant time and money was wasted.  However, Coulson J stressed that this jurisdiction to intervene in an ongoing adjudication should be used extremely sparingly and only in clear-cut cases.  He did not consider that this was such a case, as:

  • most importantly, the Adjudicator considered that he could fairly determine the dispute within the timetable proposed (and indeed, within a shorter timetable);
  • the timetable, while tight, did not appear incapable of giving rise to a fair result.  (In this respect, the Court noted that while the timetable officially commenced after the holiday season, there was nothing to stop The Dorchester from beginning its review of the claim during the holidays);
  • while it would have been better for Vivid to have provided the supporting documentation in advance of the Referral, the Court was not currently in a position to say whether its failure to do so amounted to or would definitely lead to a breach of natural justice or whether the numerous changed figures were a real point of substance and genuine complaint; and
  • if the declarations were not granted, The Dorchester could still oppose enforcement on the grounds of breach of natural justice after the adjudication had concluded (in which case the Court would be in a far better position to tell whether the breach had actually occurred and caused real prejudice to The Dorchester).

The Court acknowledged that this left a question mark over the adjudication, but regarded this as an unfortunate but inevitable consequence of the manner in which the adjudication had been commenced.  In that regard, while the Court criticised the ambush tactics employed by Vivid, it noted that the Housing Grants, Construction and Regeneration Act allowed adjudication proceedings to be commenced “at any time”.

For our Law-Now on the ambush aspects of this case, click here

This summary was provided by CMS Cameron McKenna LLP.

For more information visit

Click here to read full-screen | Click here to print the case