Herschell Engineering Limited -v- Breen Properties Limited (No 2)
The factors to be taken into account by the court when considering an application for a stay of execution on a summary judgement enforcing an adjudicator's decision
28 July, 2000
The employer applied for a stay of execution on the summary judgement obtained by the contractor to enforce the adjudicator's decision. Judge LLoyd rejected this application on the basis that on the basis that the decision was a routine one on a small contract where a small company was awarded a modest sum of money and that the steps taken by the employer indicated no more than an element of desperation to avoid meeting its just liabilities. Judge LLoyd set out the factors to be taken into account when considering an application for a stay of execution on a summary judgement enforcing an adjudicator's decision. These factors include the following: (1) It was well established that a decision should generally be enforced by way of summary judgement. (2) The fact that the defendant could assert in subsequent court or arbitration proceedings that the decision was wrong meant that such an application had to be heard with some care. (3) A special circumstance might be the claimant's inability to repay the judgement sum after the dispute's final resolution in subsequent court or arbitration proceedings. (4) An error in the decision which was patent or which would convince the tribunal that no one could have arrived at the same conclusion as the adjudicator was not a special circumstance. (5) The court had to be satisfied that the enforcement of the decision would result in such injustice to the defendant that it would not be a just way of dealing with the case consistent with the overriding objective of the CPR of justness. (6) A stay need not postpone the time for payment for an unacceptable period. (7) A stay might be appropriate where the defendant was the contractor and was unable to pay the judgment sum, rhe court concluded that the project would grind to a halt were the contractor to be obliged to pay the judgment sum without delay insofar as the contractor would go into liquidation and there were well founded doubts about the correctness of the decision. Advice Note Generally the court's policy is that adjudicators? decisions must be enforced. However, it is possible that a stay of execution on a judgment enforcing a decision will be granted. Judge LLoyd's list of factors to be taken into account by the court therefore bears close examination.