Recent success in the Technology and Construction Court
3rd October, 2023
In a team comprising Adam Beaumont (Counsel), Stephen Radcliffe, Joe Mills, Sam Slater and Josh Wood, Ward Hadaway's construction offering in Leeds have succeeded in enforcing an adjudicator's award in the Technology and Construction Court whilst concurrently resisting a stay of enforcement.
In an adjudication pertaining to sums arising from an unpaid payment application, Bexhill Construction Ltd (“Bexhill”) were awarded £49,664.80. Mike Birchall, of BEA, acted on Bexhill’s behalf in respect of the adjudication proceedings and remained part of the enforcement team when the award went unpaid by Kingsmead Homes Ltd (“Kingsmead”).
The judgment of HHJ Kelly, sitting as a Judge of the High Court, affirms the continued trend of the Court giving primacy to an adjudicator’s decision wherein it is stipulated that all arguments advanced have been taken account of, even if those arguments are not individually referenced within the award itself (see, for example AMEC Group Ltd v Thames Water Utilities Ltd (2010)).
In such circumstances, since the seminal case of Pilon Ltd v Breyer Group plc (2010), the question for the Court is whether the adjudicator has failed to consider the questions referred to him (as framed by the adjudication notice), rather than whether those issues have been rightly, or wrongly, decided. Put shortly, if an adjudicator had not answered the question put to him, his decision would be unenforceable.
In the present circumstances the Court preferred Bexhill’s submissions and held that the adjudicator had made clear in his award that he had taken account of all the arguments, even though Kingsmead contended to the contrary.
The status quo remains, as Coulson J (as he then was) put it in his widely referenced judgment: “If the decision was within the Adjudicator’s jurisdiction and the Adjudicator broadly acted in accordance with the rules of natural justice, such defendants must pay now and argue later” (Hutton Construction Limited v Wilson Properties (London) Limited (2017)).
The hurdle to overcome to resist enforcement remains a high one; unless the adjudicator has exceeded his jurisdiction, or is in serious breach of the rules of natural justice, the decision will be enforced.
For more specifics about this particular case click here.
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