Bilton & Johnson (Building) Co Ltd v Three Rivers Property Investments Ltd
Citation: [2022] EWHC 53 (TCC)
Background Facts​
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Works concerned the refurbishment of an industrial estate in Oxfordshire under a JCT Design and Build Contract 2016.
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The initial tender (August 2018) included phased completion dates and separate liquidated damages rates for each section.
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Later, a "Signed Contract" dated January 2019 provided a single completion date and a simplified liquidated damages clause (£2,500 per week overall).
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TRP withheld £234,641.56 in liquidated damages, arguing entitlement to £2,500 per section per week.
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BJB disputed this, arguing that under the signed contract, only £2,500 per week in total applied and TRP’s withholding exceeded what was contractually due.
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The adjudicator decided in BJB’s favour, awarding repayment of £228,273.48 plus interest and costs, after finding that TRP was entitled only to minimal damages.
​Judgment
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Court's decision:
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Summary judgment was granted enforcing the adjudicator's decision.
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The defendant's arguments that the adjudicator had acted in breach of natural justice or failed to consider its rectification defence were rejected.
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Key points:
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The adjudicator properly considered the competing contractual documents and concluded the final signed contract superseded earlier drafts.
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The adjudicator did consider TRP's rectification defence in detail and rejected it, finding that even if a drafting mistake had occurred, the higher liquidated damages rate would have been an unenforceable penalty.
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​
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Outcome:
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BJB’s enforcement application succeeded in full.
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TRP was ordered to pay the adjudicated sum plus interest.
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General Principles Developed
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Enforcement of adjudication decisions:
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Reinforces the robust approach of English courts to enforcing adjudicators’ decisions promptly (“pay now, argue later”).
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Courts will not interfere merely because of alleged errors in law or procedure unless there is a clear jurisdictional error or serious breach of natural justice.
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Natural justice in adjudication:
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Adjudicators must give parties a fair opportunity to address key issues but do not need to consult on every element of their reasoning.
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If the adjudicator’s reasoning is derived from arguments before them, there is generally no breach.
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​
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Rectification defences:
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Where a party argues rectification to correct an alleged drafting mistake, they must establish it clearly and show entitlement before relying on the corrected term.
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The adjudicator is not empowered to grant rectification unless expressly agreed or supported by clear authority.
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Penalty clauses:
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Even if a rectification claim might theoretically succeed, liquidated damages that are “extravagantly disproportionate” to legitimate interests will be unenforceable as penalties.
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Contract formation and supersession:
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A signed contract can supersede earlier tender-stage or draft contractual documents even if those earlier versions contained different provisions.
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