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Adjudicator's award enforced in TCC because contractor's evidence for Part 8 claim did not stack up

Tue, 19 May 2026 11:19:52 GMT

United Utilities Water Limited v Northstone (NI) Limited (trading as Farrans Construction) [2026] EWHC 1057 (TCC) Her Honour Judge Kelly

Summary judgment was granted enforcing an adjudication award in favour of a water undertaker against a civil engineering contractor under NEC3. The contractor's challenges to the validity of the payment notice under Part 8 proceedings failed because it had not adduced sufficient evidence to enable the court to assess how a reasonable recipient would have understood the notice.

On 6 May 2026 this judgment was handed down from the TCC in Leeds.

In the application for enforcement of an adjudicator’s award in favour of United Utilities for the sum of £3.3.m Farrans raise some Part 8 claims where the declarations sought would have defeated the summary enforcement of the adjudicator's decision.

Her Honour Judge Kelly decided that the matters in the Part 8 claims were unable to be decided because “the evidence does not permit the court to determine how a reasonable recipient would have understood the notices.”

“The evidence provided by Farrans is insufficient to enable the court to determine how the relevant notices were received against the background of the knowledge of the actual parties.”

Quoting Lord Wilberforce “No contracts are made in a vacuum; there is always a setting in which they have to be placed.”

As a result of there being insufficient evidence to decide whether the notices were contractually compliant there was no requirement for the court to consider further if Farrans should have served a counter notice stating it intends to ‘pay less’.

At what point in time is the para 106-(1)(a) Residential Occupier exception to adjudication test to be undertaken

Tue, 19 May 2026 11:19:52 GMT

Judgment 29 April 2026

RBH Building Contractors Ltd v James [2026] EWCA Civ 511 LJs Coulson, King and Males

Summary

The court considered the principles that applied when determining whether a person intended to occupy a property as their

residence for the purposes of the residential occupier exception in the Housing Grants, Construction and Regeneration Act

1996 s.106.

Intention to occupy: applicable principles -

The following principles applied when determining whether a person "intends to occupy" a property as their residence for the purposes of s.106 :

1) the burden of proof was on the party seeking to trigger the statutory exception;

2) an intention to occupy was a matter of fact that might be capable of being summarily determined because the threshold was not high;

3) the determination must be made as to the existence of the intention to occupy at the time that the contract was made ;

4) the first element of the test was whether there was a bona fide, subjective intention to occupy in the future;

5) the second element was whether the person wishing to occupy had an objectively realistic, rather than a fanciful, prospect of

bringing that occupation about and there must be an intention to occupy within a reasonable time after completion of the works,

Westfields Construction Ltd v Lewis [2013] EWHC 376 (TCC) , [2013] 1 W.L.R. 3377, [2013] 2 WLUK 753, Gregson v Cyril

Lord Ltd [1963] 1 W.L.R. 41, [1962] 10 WLUK 104, Gatwick Parking Services Ltd v Sargent [2000] 3 P.L.R. 25, [2000] 1

WLUK 495 and Islington LBC v Boyle [2011] EWCA Civ 1450, [2012] P.T.S.R. 1093, [2011] 12 WLUK 158 applied (see paras

40-52 of judgment).

Discussion - The starting point was the limited scope of the s.106 issue before the judge, which arose in a claim for summary

judgment. The judge's conclusion that there was a realistic prospect that the respondents could show that they intended to occupy

the property on completion was not a final determination, and the judge was entitled to find that the respondents had crossed the

relatively low threshold. The respondents' subjective evidence as to what they intended to do at the time the contract was made

was unequivocal, and other evidence, when considered objectively, supported those statements of subjective intent. While the

development loan and undertakings pointed in the other direction, they were not a trump card in law so as to override all the other

evidence. The court rejected the contractor's argument that an intention to occupy could not realistically be achieved because any

occupation would be unlawful for failing to comply with the development loan. At most, occupation of the house as a dwelling

might have rendered the respondents in breach of the development loan, but it would not have given rise to unlawful occupation,

Howsons Ltd v Redfearn [2019] EWHC 2540 (TCC) , 186 Con. L.R. 222, [2019] 7 WLUK 782 distinguished (paras 53-67).

Supreme Court decides when a contractor can terminate under JCT D&B 2016 following serial late payments

Tue, 19 May 2026 11:19:52 GMT

Judgment 15 January 2026 in Providence Building Services Ltd v Hexagon Housing Association Ltd [2026] UKSC 1 overturning the Court of Appeal decision concerning when a contractor can terminate the contract following serial late payments under the JCT Design and Build Contract 2016 edition with amendments.

Ratio decidendi 1:
On an objective natural meaning of the words in their context the contractor must have accrued a right to terminate before they can later use that right, the employer must have been 28 days as amended from 14 days late following the final date for payment and a notice served. In this case the right to terminate never accrued because the employer was never 28 days late paying. It is only when there is a second 28 day late payment that the contractor can give notice to terminate.

Ratio decidendi 2:
It would be a sledge hammer to crack a nut if the contractor could terminate when the employer was just late twice, not requiring the employer to be 28 days late as specified, this clearly was not the intention of the words used.

Ratio decidendi 3:
There is no requirement for the employer's rights to terminate and the contractor's rights to terminate to align. Each party has differing obligations and so it makes sense they would have differing requirements before termination could be performed. In this case their rights are clearly asymmetrical.

Obiter Dicta
It would be wrong to try and distort the clear simple meaning of the words used in the contract in an attempt to protect the contractor from cash flow difficulties caused by late payments. There are statutory provisions available to help the contractor deal with these scenarios.