Nap Anglia Ltd V Sun-Land Development Co Ltd
Technology and Construction Court
Edwards-Stuart J
23 January 2012

 

The contractor was awarded some £96,000 by the adjudicator. Whilst the contractor obtained summary judgment to enforce the adjudicator’s decision, Edwards-Stuart J ordered that execution of the judgment in excess of £65,000 should be stayed. The adjudication took place concurrently with county court proceedings in respect of the same dispute. If the contractor was successful in the (concurrent) county court proceedings, the overall effect would be that it would receive £65,000 some five or six months before it would otherwise have done if it had not referred the dispute to adjudication. The developer at the enforcement hearing raised a number of defences to the application for summary judgment, two of which were abandoned before the hearing. The judge was very critical of the conduct of the developer’s solicitor in relation to one of the abandoned defences, namely that the adjudicator delivered his award out of time, and of the fact that there was attached to a witness statement of the developer’s solicitor two ring binders' worth of assorted and unpaginated documents which proved useless.

 

Edwards-Stuart J held that the developer should pay 85% of the contractor’s costs of the enforcement hearing to be paid on the standard basis and not on an indemnity basis as contended for by the contractor. Whilst it was arguable that the developer’s approach to the defence of the contractor’s application for summary judgment verged on the borderline of the type of conduct that might attract an award of indemnity costs, it did succeed in resisting the contractor’s claim to a significant degree since the application was really about cash flow. The fair and appropriate order was that the contractor should be awarded a proportion of its costs to reflect both the degree of success and the time spent on the issues on which it lost or lost in part. The developer's fallback position of seeking a stay of execution of any sum enforced by way of summary judgment was based on a number of grounds. It was accepted that the contractor might well be unable to repay the full amount claimed if any stay was refused so that it could be said that the developer was successful in part on this part of the application. However, it was doubtful whether more than about 15% of the hearing time was spent on this discrete aspect of the submissions in support of a stay.