Last week’s wake-up call for contractors
- nadpinsonneault11
- Oct 19
- 2 min read
Adjudication: last week’s wake-up call for contractors
RBH Building Contractors Ltd v James [2025] EWHC 2005 (TCC) put three issues back on the risk register:
1) Residential occupier check:If your client is a private homeowner who intends to live in the property, the Construction Act right to adjudicate may not apply your “fast-track” route can be blocked.De-risk at day zero:
Ask & record: Confirm intended occupation; get a signed declaration and file it.
Paper trail: Keep Land Registry extract, planning docs, emails stating intent, utilities/electoral roll changes, sale/lease of prior home.
Contract wording: Add an express adjudication clause (name the appointing body, timetable, temporarily-binding effect) and a fallback path (mediation → court).
Commercials: Price/programme for a no-adjudication scenario tighter milestones, crystal-clear valuation rules, stronger security (retention, AP bond, escrow).
Go/no-go: Escalate if occupier risk is high and cashflow is critical.
Edge case can you “switch on” adjudication by contract?Yes contractual adjudication can still work with a residential occupier, but only if the clause is fair and transparent (consumer-law compliant). Keep it prominent, balanced on fees/timelines, and jargon-lite. If it looks one-sided or buried in small print, expect enforcement headwinds.
2) Pay less notices: Courts are favouring plain-English clarity over hyper-technical traps. If it reads clearly to a reasonable reader, it’s likely compliant.
3) Adjudicator fees: Even where enforcement stalls, fee allocations tend to stand. Don’t bank on post-hoc reallocation.
What this means for Commercial/QS/PM teams:
Qualify B2C early: Validate occupation risk at RFP/contract stage and adjust dispute strategy and float.
Notice hygiene: Treat payment/pay-less notices like client-facing deliverables clear totals, dates, basis of calc, cross-refs.
Cashflow realism: Model a scenario where an otherwise “bankable” adjudication doesn’t enforce. Protect margin with buffers and alternative levers.
Playbook update: Refresh adjudication SOPs, templates, and consumer-law checks this week.
Bottom line: adjudication remains fast and effective but only if your front-end governance, evidence trail, and notices are fit-for-purpose. Tighten the inputs, reduce litigation drag, protect cash.
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