Enforcement of Adjudicators’ Awards: “Time at Large” as a Consequence of Rejecting a Party’s Case Does Not, Without More, Breach Natural Justice

1. Introduction

In Entexol Ltd v Sked Construction Ltd [2026] CSOH 80, the Outer House of the Court of Session (Lord Lake) considered whether to enforce an adjudicator’s award arising from a subcontract on works being carried out for Scottish Power Energy Networks PLC. The adjudicator (in a second adjudication) directed the defender to pay the pursuer £113,767.

The defender resisted enforcement on the familiar ground of breach of natural justice, arguing that the adjudicator went beyond the parties’ submissions by concluding that “time was at large”, and did so without giving the defender an opportunity to address what would constitute completion within a reasonable time.

A further issue arose concerning a separate claim for £10,000, said to be payable once the pursuer provided additional information.

2. Summary of the Judgment

  • The court enforced the adjudicator’s award for £113,767, finding no relevant defence based on natural justice.
  • The court held that the adjudicator’s reference to time being at large was, properly analysed, a consequence of rejecting the defender’s asserted fixed completion date, not a new, unargued basis that unfairly ambushed the defender.
  • The court rejected the contention that the adjudicator was obliged (having rejected the defender’s “fixed date” case) to invite further submissions during the adjudication.
  • As to the £10,000 claim, the court refused summary disposal: there was a live factual dispute about whether the required information/documentation had been provided. The case was put out By Order for further procedure.

3. Analysis

3.1 Precedents Cited

Van Oord UK Limited v Dragados UK Limited [2022] CSOH 30, [2022] SLT 521

Lord Lake treated Van Oord as restating the governing principles: adjudicators’ decisions are generally enforced summarily and courts are slow to refuse enforcement, but enforcement may be declined where the adjudication process involved a material failure of natural justice.

The key practical focus (adopted here) is not catchy labels such as an adjudicator going on a “frolic of his or her own” but whether each party had a fair opportunity to address the points that mattered to the decision.

ATG Services (Scotland) Limited v Ogilvie Construction Limited [2024] CSOH 94

This authority reinforced that the enforcement court is not re-hearing the merits; it is policing procedural fairness. Lord Lake’s reasoning aligns with the approach that robust enforcement is the norm unless a genuine unfairness is shown.

Premier Modular Limited v Maidstone and Tunbridge Wells NHS Trust [2026] EWHC 1404 (TCC)

Though an English TCC decision, it was cited for the same core proposition: natural justice concerns arise where a party is unaware of and has no opportunity to respond to a dispositive point. Lord Lake applied that lens to the “time at large” complaint.

3.2 Legal Reasoning

(a) What the adjudicator was asked to decide

The dispute before the adjudicator concerned the “true value” of works in the context of a payment notice and a pay less notice. A critical component of the defender’s asserted contra-charges was a claim for costs said to arise from late completion. The defender’s case was put on a specific footing: that an email amounted to an instruction fixing completion at 13 November 2024.

(b) The “time at large” label was not the operative unfairness alleged

The defender’s natural justice argument depended on the proposition that neither party had argued “time at large”, and that the adjudicator’s adoption of that concept introduced a new case. Lord Lake disagreed on analysis:

  • The adjudicator’s task necessarily included deciding whether there was a binding completion date (because the defender made that pivotal assertion).
  • Having rejected that fixed-date proposition, it followed that the defender had not established an essential element of its contra-charge case.
  • The adjudicator’s reference to “time at large” was characterised as a “red herring”: the defender did not fail because the adjudicator invented a new doctrine; it failed because it did not prove the contractual completion date it relied upon.

(c) No duty on the adjudicator to invite further submissions once minded to reject a party’s case

The defender argued that if the adjudicator rejected the asserted fixed completion date, fairness required inviting submissions on “reasonable time” completion. The court refused this:

  • In ordinary court procedure, a tribunal is not generally required to warn parties that it is minded to reject their submissions and invite them to reformulate their case mid-decision.
  • Adjudication is designed to be speedy and informal, with tight timetables. A requirement to “pause and invite further submissions” whenever a decision-maker leans against a party on a key point would undermine the statutory purpose of adjudication.
  • Critically, the defender had chosen to run the delay/contra-charge argument on a particular basis (a fixed date) and did not advance an alternative “reasonable time” case in the event the fixed date was not established.

(d) Materiality and the enforcement threshold

Although the pursuer argued that the defender would have failed anyway on causation/quantification (i.e., lack of demonstrated loss attributable to delay), Lord Lake’s decision did not turn on that as a decisive fallback. The judgment instead treats the natural justice challenge as failing because, properly characterised, the adjudicator did not decide on an unargued basis: he decided an issue inherent in the defender’s own case (whether a binding date existed), and rejected it.

(e) The separate £10,000 claim

The court distinguished the enforcement of the adjudicator’s award from the separate contractual/factual dispute about whether conditions for payment of £10,000 had been “purified”. On the material available, the court could not resolve the disputed facts and therefore declined both summary decree and striking the defence as irrelevant.

3.3 Impact

  • Reinforces robust enforcement in the Court of Session: natural justice challenges must identify a real procedural unfairness, not merely an unwelcome conclusion.
  • Clarifies the “frolic” rhetoric: a decision is not vulnerable simply because the adjudicator uses a doctrinal label not advanced by either party, where the label is merely descriptive of the consequence of rejecting a party’s pleaded route.
  • Case-presentation discipline: parties advancing delay/contra-charge claims should plead and evidence alternatives (e.g., “if no fixed date, then unreasonable time”) during adjudication; they should not expect a later opportunity to rebuild the case via enforcement proceedings.
  • Practical guidance for adjudicators: while adjudicators should avoid genuinely novel dispositive points without inviting submissions, they are not required to give iterative warnings each time they are minded to reject a party’s key contention.

4. Complex Concepts Simplified

4.1 “Natural justice” in adjudication enforcement

In this context, “natural justice” broadly means procedural fairness: each party must have a fair chance to address the points that matter. Courts usually enforce adjudicators’ awards, and will refuse only where the unfairness is sufficiently serious to vitiate the decision.

4.2 “Time at large”

“Time at large” is often used to describe a situation where the contract does not provide (or no longer effectively provides) a binding completion date, so the contractor/subcontractor is instead required to complete within a reasonable time. In this case, the court treated the adjudicator’s reference to the phrase as not the engine of the decision; the decisive point was the failure to establish the fixed completion date that underpinned the defender’s contra-charge.

4.3 “Contra-charge”

A contra-charge is a set-off type claim where one party deducts sums (e.g., alleged delay costs) from what it would otherwise pay under the payment mechanism. The party asserting the contra-charge must establish the contractual and evidential basis for the deduction.

5. Conclusion

Entexol Ltd v Sked Construction Ltd [2026] CSOH 80 underscores that enforcement of adjudicators’ awards in Scotland remains strongly pro-enforcement. A natural justice challenge will not succeed merely because an adjudicator adopts terminology (such as “time at large”) not expressly deployed by the parties, where the reasoning is simply the logical consequence of rejecting a party’s own pleaded foundation. The decision also highlights the importance, in adjudication, of running any necessary alternative arguments within the adjudication timetable, rather than expecting the enforcement court to accommodate a second chance.