Herschell Engineering Limited -v- Breen Properties Limited
It was not the case that the court should not countenance concurrent adjudication and litigation proceedings in respect of the same cause of action (with the result that the employer should not be granted the injunction it sought to stop the adjudication proceedings)
14 April, 2000
The employer refused to pay two interim invoices. The contractor issued court proceedings for the amount of the invoices. The judge ordered the default judgement obtained by the contractor to be set aside and a stay of the proceedings for 28 days ?for adjudication to be considered.? An adjudicator was appointed who ordered the employer to pay a proportion of the amount claimed. The employer did not participate in the adjudication. The contractor applied for summary judgement in respect of the sum ordered by the adjudicator. Dyson J held that it was not the case that the court should not countenance concurrent adjudication and litigation proceedings in respect of the same cause of action. This meant that the employer should not be granted the injunction it sought to stop the adjudication proceedings which were begun before the court proceedings were commenced. Although there was a well-established line of authority which established the principle that there should not be two sets of concurrent court proceedings or concurrent court and arbitration proceedings (on the basis that if there were such proceedings, this would be oppressive and unjust to the party who had not commenced the proceedings and would give rise to the risk of inconsistent findings), there was no close analogy between the respective positions of an arbitrator and an adjudicator where there were concurrent court proceedings. The principle that there should not be concurrent court and arbitration proceedings did not also hold good for concurrent court and adjudication proceedings insofar as section 108(2)(a) of the Construction Act 1996 expressly stated that a party could refer a dispute to adjudication ?at any time? and (2) whilst the words ?at any time? did not appear in paragraph 1(1) of the Scheme for Construction Contracts, it was clear from section 108(5) that it was intended that the relevant provisions of the Scheme should be consistent with the requirements of section 108(1) to (4). Advice Note Notwithstanding the risk of inconsistent findings, Dyson J in this case made it clear that the courts will not allow the adjudication process to be 'stymied? by the mere fact that there are ongoing court proceedings dealing with the same subject matter as the adjudication.