Adjudication Case Summaries

Akenhead J's guidance to practitioners seeking to enforce adjudicators' decisions where the defendant did not participate in court enforcement proceedings actively or at all

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The defendant should pay the claimant's legal costs of the court enforcement proceedings to enforce the adjudicator's decision, which costs should not be confined to the (£100) fixed costs for such proceedings and instead should be assessed summarily

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The sum allowed by adjudicator's decision should be enforced by its payment by the contractor without any set off within 14 days of the date of the court hearing

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Considerations as to whether and in what circumstances fraud or deceit was or might be a defence in adjudication proceedings and in court proceedings for the enforcement of adjudicators’ decisions

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The adjudicator was wrong in law to have ordered to order payment of sums to the sub-contractor in respect of his assessment of the value of its claims in its payment application 36 without taking into account any sums paid or allowed by the contractor in respect of its payment application 35

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The employer should be permitted to set off the liquidated damages to which the adjudicator in the second adjudication decided it was entitled against the amount of the advance payment which the contractor was awarded in the first adjudication

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The adjudicator’s decision in the first adjudication declaring the employers’ entitlement to certificates of non-completion under JCT 2005 should not be enforced by the contractor paying the sum in respect of liquidated damages claimed by the employers

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Propositions derived from caselaw as to what an adjudicator was required to give in terms of reasons if he was obliged to give a reasoned decision and the consequences of his failing to do so

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The true construction of the contract was that the contractor was entitled to pursue its reference to adjudication despite having referred the same dispute to arbitration

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The terms of the adjudicator's decision in the third adjudication did not demonstrate that the adjudicator was apparently biased or in breach of the rules of natural justice

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The holding company should have leave to defend the contractor’s application for summary judgment to enforce the adjudicator’s decision in its favour on terms

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The architect should have summary judgment to enforce the adjudicator’s decision for the payment to it of outstanding fees by the client in the sum specified by the adjudicator

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There was arguably no construction contract in writing as a result of the sub-contractor’s acceptance of the contractor’s draft sub-contract order or the contractor’s letter of intent, the agreed minutes of the pre-start meeting and the sub-contractor starting work thereafter

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The adjudicator's decision was invalid on the ground that it was made in an adjudication where the request for the adjudicator's appointment preceded the contractor's notice of the adjudication

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The guarantor had real prospects of successfully defending the contractor’s claim against him under the guarantee for the sum which the adjudicator decided should be paid by the employer to the contractor

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The contractor was entitled to set off the overpayment which the adjudicator found that it had made to the employer from the sum which the contractor was ordered to pay by the arbitrator as an interim payment in respect of the costs for which it was liable to the employer in the arbitration

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The sub-contractor’s cause of action in the court proceedings it brought to recover the amount of the deduction it made from the sub-sub-contractor’s final account for allegedly defective work was not statute barred by limitation

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The cross claim which the contractor sought to bring in the adjudication by way of defence to the sub-contractor’s claim could not properly be brought in the absence of an effective withholding notice having been given by the contractor in respect of that claim

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Even if the employer had established that there was no contract in writing for the purposes of the Construction Act, the court would nevertheless have been reluctant to exercise its discretion in favour of making the declaration sought by the employer that there was no such contract

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The true construction of the “pay when paid” clause in the sub-contract was that it only bit if the employer were the subject of a court made administration order under Part II of the Insolvency Act 1986 as amended, which it was not

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