SG South Ltd v Kings Head Cirencester LLP

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
 

SG SOUTH LTD V KING’S HEAD CIRENCESTER LLP

 

Technology and and Construction Court
Akenhead J
29 October 2009

 
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
 
Akenhead J in his judgment set out the considerations to be taken into account by the court in determining 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.
Whilst fraud or deceit could be so raised provided that it was a real defence to the claims, it was also open to parties to argue that the other party's witnesses were not credible by reason of fraudulent or dishonest behaviour. If fraud was to be raised to avoid enforcement or to support an application to stay execution of the enforcement judgment, it had to be supported by clear and unambiguous evidence and argument. A distinction had to be made between fraudulent behaviour, acts or omissions which were or could have been raised as a defence in the adjudication on the basis that if they were in effect adjudicated upon, the decision without more was enforceable and were not and could not reasonably have been raised but which emerged afterwards on the basis that it was possible that they could be raised in enforcement proceedings. In the case of fraudulent behaviour, acts or omissions which emerged afterwards, it was necessary to differentiate between fraud which directly impacted on the subject matter of the decision on the basis that such fraud could be raised in enforcement proceedings and was independent of the subject matter of the decision on the basis that such fraud should not generally be raised in enforcement proceedings. An example of fraud which emerged afterwards and directly impacted on the subject matter of the decision was where it was later discovered that the certificate on which an adjudication decision was based was discovered to have been issued by a certifier who had been bribed or who had been fraudulently misled by the contractor into issuing the certificate by a fraudulent valuation. Examples of fraud which emerged afterwards but were independent of the subject matter of the decision were fraud on another contract or cross claims arising on the contract in question which could only be raised by way of set off or cross claim
 
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