Mr Micawber and Jarndyse v Jarndyse revisited - the Technology and Construction Court enforces a “smash and grab”adjudication counterclaim in the UK

Abstract

To catch a thief in a “smash and grab” counterclaim and Mr Micwaber As a seasonal gift, contractors in the UK are now entitled to use a “smash and grab” counterclaim in response to an adjudication brought against them, in their efforts to be paid by their employer or main contractor. The Technology and Construction Court of the High Court in London recently described the opposition to such counterclaim as “Micawberism”, from the character of Mr Micawber in the Charles Dickens novel of David Copperfield, that is sometimes adapted for the Christmas season, that is approaching at the time of writing. Adjudication in building disputes in the UK is an established form of Alternative Dispute Resolution, in which the adjudicator (normally a quantity surveyor or a construction professional) is asked to make a “fast tracked” decision, generally upon what should be paid and by whom in a building dispute. Until recently adjudicators could not award payment of a sum of money to the responding party in an adjudication by way of a counterclaim, because adjudicators did not have that power, unlike Judges in civil court proceedings. This has now been changed by the decision of the Technology and Construction Court of the High Court (the TCC) in VMA Services Limited -v- Project One London Limited [2025] EWHC 1815 (TCC) in which I appeared as Counsel for Project One.