Cubex (UK) Ltd v Balfour Beatty Group Ltd
Citation: [2021] EWHC 3445 (TCC)
Background Facts​
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Balfour Beatty was engaged by Crossrail to design and fit out Woolwich Station.
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Cubex claimed it had a contract with Balfour Beatty for the design, manufacture, and supply of 296 doors worth over £2 million.
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Balfour Beatty denied that any concluded contract was formed with Cubex, asserting it contracted with a third-party supplier instead.
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In adjudication, Cubex claimed payment of £408,216.04.
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The adjudicator found that a contract was concluded on 23 February 2017 and awarded Cubex the full amount.
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Cubex sought to enforce this award via summary judgment.
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Balfour Beatty resisted, arguing no concluded contract, lack of adjudicator jurisdiction, and breach of natural justice.
​Judgment
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Court’s decision:
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Summary judgment was refused.
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The judge found that Balfour Beatty had a real prospect of successfully defending the claim on several grounds.
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​
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Key findings:
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The contract identified by the adjudicator (dated 23 February 2017) was not the date contended by either party and lacked clearly identified essential terms.
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The adjudicator decided the dispute on a basis neither party argued, denying Balfour Beatty the chance to address that specific point — constituting a material breach of natural justice.
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Even if there was evidence of negotiations and price proposals, the adjudicator’s conclusion was not supported by the evidence and was reached without giving the parties an opportunity to address it.
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The argument regarding "excluded operations" under section 105(2) of the Housing Grants, Construction and Regeneration Act 1996 (relating to supply-only contracts) remained a live issue and was not adequately resolved.
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​
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Delay issue:
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The court acknowledged Cubex’s three-year delay in seeking enforcement but did not treat this as a standalone bar to judgment.
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General Principles Developed
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Proper basis for contract formation:
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An adjudicator cannot decide a case on a factual or legal basis that was not argued by either party without first giving them a fair opportunity to respond.
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The conclusion that a contract was formed on a specific date not advanced by the parties undermines jurisdiction.
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​
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Natural justice in adjudication:
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A breach of natural justice arises where an adjudicator "goes off on a frolic of their own" and relies on decisive points not put to the parties.
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Even if a party might have had limited further submissions, the procedural fairness requirement remains strict.
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​
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Excluded operations under the 1996 Act:
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Supply-only contracts (e.g., pure manufacture or delivery without installation) fall outside the statutory adjudication regime unless linked to installation obligations.
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Hybrid contracts must be carefully examined to determine whether they are "construction contracts" within the statutory definition.
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​
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Enforcement approach:
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The "pay now, argue later" principle does not override fundamental jurisdictional objections or serious breaches of natural justice.
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Courts maintain a robust approach to adjudication enforcement but will not enforce decisions made outside jurisdiction or in breach of fairness.
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