Clerkenwell Lifestyle v HG Construction:

When EOT emails do not rewrite the completion regime

Technology and Construction Court case note

This case note concerns Clerkenwell Lifestyle (UK) Ltd v HG Construction Ltd [2026] EWHC 1406 (TCC), a Technology and Construction Court decision in which the TCC enforced an adjudication award of £955,943 after rejecting HG Construction’s attempt to treat earlier extension of time correspondence as a separate binding agreement that changed the completion dates.

Parties and procedural setting

• Claimant: Clerkenwell Lifestyle (UK) Ltd.
• Defendant: HG Construction Ltd.
• Court: Technology and Construction Court.
• Judge: Mrs Justice Jefford.
• Reported procedural setting: adjudication enforcement and a related Part 8 claim concerning the legal effect of extension of time correspondence.

The dispute arose from a 153-room hotel and affordable housing development in Clerkenwell built under an amended JCT Design and Build Contract.

Key issues

• Whether a February 2023 email exchange created a separate binding agreement revising the completion dates.
• Whether that alleged agreement stood independently from the contractual extension of time machinery.
• Whether the adjudicator had used the wrong starting point when calculating liquidated damages.
• Whether HG could resist enforcement by arguing that the adjudicator had failed to deal with the separate binding agreement point.

Claimant’s position and legal arguments

Clerkenwell sought to enforce the adjudication award. The adjudicator had awarded Clerkenwell just under £956,000 in liquidated damages. Clerkenwell’s case was that the award should be enforced and that HG’s attempt to recast the February 2023 email exchange as a separate binding agreement did not provide a valid answer.

The next day after the February 2023 exchange, the Employer’s Agent issued a formal Notification of Extension of Time under clause 2.25, citing two Relevant Events and stating that the notice was issued subject to the terms of the email exchange. That formed part of the factual basis for resisting the argument that the email traffic had displaced the contract machinery.

Defendant’s position and legal arguments

HG’s case was that the February 2023 email exchange constituted a binding agreement to revise the completion dates, entirely independent of the contractual extension of time mechanism. HG’s further argument was that the adjudicator should therefore have added later extensions to those revised dates rather than to the original contractual completion dates.

HG advanced that point after the adjudication decision, in a response submitted the day after the decision under the guise of a request to correct a “slip”. The response ran to nearly fifteen pages and argued that the adjudicator had started from the wrong baseline.

Court’s findings

Mrs Justice Jefford rejected HG’s argument on two fronts.

First, on enforcement, the court found no breach of natural justice. Mrs Justice Jefford said: “An adjudicator cannot be criticised for failing to grapple with a defence that was never properly put to him, however inadvertent the omission might have been.” The supposed binding agreement defence had not in substance been raised in HG’s Response to the Referral. One paragraph quoting the February email appeared only in a section dealing with a different argument about the scope of the works, and HG’s own expert had run his delay analysis from the original contractual completion dates throughout. That was inconsistent with the later binding agreement case.

Secondly, on the Part 8 claim, the judgment treated the February correspondence as part of the contractual extension of time process rather than a separate contract. Mrs Justice Jefford said: “The word ‘agree’ in this context most naturally describes the parties operating the contractual mechanism.” That conclusion was reinforced by the formal Notification of Extension of Time issued the following day under clause 2.25, by the fact that the February email formed part of a broader package of proposals spanning two contracts, and by the fact that several of those proposals were expressed to be conditional or provisional.

The judge also drew on the principle that subsequent conduct, while generally inadmissible on construction, can be evidence of whether a contract exists at all. Neither party had behaved as though a separate contract existed.

The judgment added a further point on authority. It doubted whether an Employer’s Agent appointed under Article 3 of a JCT contract would have authority to enter into a separate contract varying completion dates, as distinct from operating the extension of time provisions for which the agent had been appointed.

Court’s decision

The TCC enforced the adjudication award and rejected HG’s attempt to recast the extension of time correspondence as a freestanding binding settlement.

The practical result was that HG’s separate binding agreement argument failed both as an enforcement answer and on the Part 8 claim itself.

Key takeaways

• Extension of time correspondence will not readily be treated as a separate contract where the same exchange sits within the contractual machinery and is followed by a formal extension of time notice.
• A party resisting enforcement must ensure its real defence was actually put to the adjudicator. A point not properly raised in the Referral response is unlikely to found a natural justice complaint later.
• Courts may look hard at the wider commercial setting, including whether the alleged agreement was only one part of a broader package of conditional proposals.
• Authority still matters. Even if email language looks emphatic, a separate variation argument may fail if the relevant agent had no authority to make that contract.

Summary bullet points

• Clerkenwell Lifestyle (UK) Ltd was the claimant. HG Construction Ltd was the defendant.
• Clerkenwell’s position was that the adjudication award for £955,943 in liquidated damages should be enforced and that the February 2023 emails did not create a separate contract changing the completion dates.
• HG’s position was that the February 2023 emails had already revised the completion dates by agreement, so the adjudicator had used the wrong starting point.
• The central issue was whether the extension of time emails operated only within the contract machinery or created a separate binding agreement.
• Mrs Justice Jefford held that the separate agreement argument had not been properly put to the adjudicator and, in any event, the email language formed part of the contractual extension of time mechanism, not a standalone contract.
• Clerkenwell won. The TCC enforced the adjudication award and rejected HG’s defence and Part 8 case.