Farebrother Building Services Ltd -v- Frogmore Investments Ltd
The court should enforce the adjudicator's decision made under the TeCSA adjudication rules by way of summary judgment and should not deduct from the sum awarded by the adjudicator the amount of the defendant's counterclaim by way of set-off
20 April, 2001
The contract incorporated the adjudication rules of the Technology and Construction Solicitors? Association. There were issues before the adjudicator as to the length of any extension of time. The defendant made what was in effect a counterclaim in which it alleged that the claimant had been in critical today and in breach of contract and that it was entitled to set-off a substantial sum. The adjudicator awarded the claimant a specified sum of money. The defendant refused to make payment and the claimant brought court enforcement proceedings. Judge Gilliland held that the court should enforce the decision made and should not deduct from the sum awarded by the adjudicator the amount of the defendant's counterclaim by way of set-off (in respect of five weeks? culpable or critical delay allegedly caused by the claimant's breach of its contractual obligation to proceed with the work) on the grounds advanced by the defendant. These were that the adjudicator had failed to take into account or had ignored an important matter of defence and that if by mistake the adjudicator had failed to deal with a matter placed before him, the decision should be of no effect. This was on the basis that the court should not try to dismantle or reconstruct a decision and that a party could not under the TeCSA rules assert that (only) part of the decision was unjustified and had been made without jurisdiction. The grounds advanced by the defendant necessarily involved the proposition that if the adjudicator ignored or failed to take into account an issue of substance put forward by it, this was a matter which went to his jurisdiction. However, this proposition was incorrect on the basis that it was a matter which went to the conduct of the proceedings (rather than to jurisdiction). The approach taken by Judge LLoyd in KNS Industrial Services v Sindall (2001) was the one that should be adopted in the instant case, ie the court ought to give effect to the Construction Act 1996 and ought not to seek to whittle it down by finding reasons for intervening. Advice Note The courts will not refuse to enforce a decision simply because an adjudicator appeared not to have dealt with a defence or some other matter on which the defendant relied.