BDP Construction v Cygnet Behavioural Health: TCC enforces adjudicator's rejection of both parties' liquidated damages case

An adjudicator who declined to accept either party's case on the contractual rate of liquidated damages did not thereby exceed his jurisdiction or breach natural justice, the Technology and Construction Court has held, enforcing the decision by summary judgement.

In BDP Construction Limited v Cygnet Behavioural Health Limited [2026] EWHC 1796 (TCC), handed down remotely on 16 July 2026, Mr Justice Constable granted enforcement in the sum of £136,769 plus £4,779 in adjudicator's fees, together with interest.

The dispute arose from the construction of a hospital in Wolverhampton under an amended JCT Design and Build Contract 2016 which was never executed. Practical completion was achieved on 18 July 2024. In July 2025 Cygnet served a notice claiming liquidated damages of £141,000, calculated at £1,000 per day for 141 days running from a completion date of 29 February 2024. BDP disputed the notice, contending that the applicable amendments provided for a completion date of 26 April 2024 and damages at £14,500 per week, and referred the matter to adjudication in January 2026.

Each side maintained it had never seen the version of the contract documents relied upon by the other. The adjudicator determined the completion date to be 29 February 2024, rejected BDP's extension of time claim for want of evidenced causation, and then found that neither party had evidenced the rate agreed or intended, with the consequence that Cygnet was not entitled to liquidated damages in any amount.

For Cygnet, William Lacey, instructed by CMS, advanced an analogy that drew extended argument. Where parties ask an adjudicator whether a building is red or yellow, the answer may be red, yellow, or in appropriate circumstances orange. Should the adjudicator incline towards purple, natural justice requires that the parties be invited to address it. What is not open to him, the submission ran, is to answer that he has not been persuaded the building exists.

Constable J rejected that characterisation. The adjudicator had not found that no liquidated damages mechanism existed, but that he was not persuaded the building was either red or yellow. He had made no wider finding as to the building's existence.

The judgement identified the burden of proof as decisive. BDP bore the burden of establishing its contended rate, and Cygnet bore an evidential burden as to its own. BDP's failure did not necessitate a finding that Cygnet had discharged its burden. Clear words would be required in the documents establishing jurisdiction to remove from an adjudicator the ordinary power to find that a party has not proven its case. Distinguishing Shimizu Europe v LBJ Fabrications, where a referral's premise had been expressly accepted in the response, Constable J noted that Cygnet had stated in terms that nothing in its Response should be taken as acceptance of BDP's alternative version. Far from exceeding his jurisdiction, the adjudicator had accepted what each side said about the other's case.

Language in the decision requiring "clear and unequivocable evidence" was not defended by either counsel as an orthodox statement of the civil standard. That, the court held, was at most an error of law in answering a question the adjudicator had jurisdiction to decide, and no bar to enforcement.

On natural justice, no advance notice was required where the adjudicator was rejecting canvassed evidence rather than relying on new material or identifying a positive answer for which neither side contended. Any breach would in any event have been immaterial: Cygnet identified no further evidence it would have adduced, and its fallback argument that clause 2.29.2.1 permitted the employer to state a lesser rate in the notice had no reasonable prospect of success, there being no established rate against which a lesser figure could be measured.

Adam Beaumont, instructed by MD Law, appeared for BDP.