MILLCHRIS DEVELOPMENTS LTD v WATERS
Technology and Construction Court
2 April 2020
An injunction should not be ordered to prevent the adjudication against the contractor to proceed where it contended that it had not had sufficient time or opportunity to prepare for the adjudication because of the lockdown caused by the COVID-19 crisis
The homeowner was not happy with the works and commenced an adjudication against the contractor on 23 March 2020 alleging that she had been overcharged by £45,000 and that there were defects in the works. 23 March 2020 was the day the government imposed the strict lockdown. Before that, less strict social distancing was being recommended. The timing of the adjudication does not appear to have been a deliberate attempt to take advantage of the lockdown. The adjudicator issued a timetable which required submissions to be completed by 3 April 2020 and a site visit on 14 April 2020. The contractor asked the adjudicator to postpone the adjudication until after the COVID-19 crisis had passed. The adjudicator declined to postpone, but did award an extension to the timetable of two weeks. The contractor applied to the TCC for an injunction prohibiting the homeowner from proceeding with the adjudication, arguing that the adjudication would be in breach of the rules of natural justice. It contended that (i) It did not have time to prepare for the adjudication as a result of the COVID- 19 crisis (ii) Its solicitor was self-isolating at home which made obtaining evidence difficult and (iii) It would be unfair to have a site visit when none of its representatives were available to attend and there was not enough time to instruct a surveyor to attend the inspection on its behalf.
Jefford J declined to grant the injunction. She noted that while the TCC has the power to grant injunctions, this power will be exercised only rarely and in clear cut situations. The contractor had not met the threshold test for granting an interlocutory injunction. Short timescales are part of the adjudication process and that COVID-19 had not exacerbated the situation. There was no reason why papers could not be scanned and sent to the solicitor at home or delivered there. The real reason why the contractor was unable to obtain evidence was nothing to do with COVID-19 but was because it had been unable to contact its former managing director and had made no attempt to contact its project manager. The two week extension offered by the adjudicator would have allowed the contractor sufficient time to contact witnesses, obtain evidence and prepare its submissions.