Andrew Wallace Ltd v Artisan Regeneration Ltd

Enforcement of the adjudicator's decision should not be refused on the ground of significant lack of credibility, namely that the architect was guilty of various statutory offences and of fraudulently amending the contract to change the identity of the contracting party

Technology and Construction Court
Her Honour Judge Frances Kirkham
10 January 2006
The client opposed the enforcement of the adjudicator's decision in the architect's favour on the ground of significant "lack of credibility" on its part in the form of (1) statutory offences allegedly committed by it (including breaches of the Value Added Tax Act 1994 and offences pursuant to the Business Names Act 1985) and of (2) the alleged fraudulent amendment by it of one of the articles of agreement of the architect's contract of engagement which changed the name of the contracting company on its behalf from the owner of the architect (contracting in his personal capacity) to the company subsequently incorporated by the architect shortly after the contract was entered into (by the addition of two words in manuscript). Judge Kirkham rejected this ground of challenge.
As to the alleged statutory offences, the judge stated that it would not be appropriate in such enforcement proceedings to express any view as to the architect's possible liability for the various alleged offences on the basis that this was a startling proposition. In particular the judge pointed out that (1) this was a civil dispute with a different standard of proof required in criminal proceedings and (2) such allegations were matters for the appropriate authorities and, if necessary, a criminal trial.
As to the alleged fraudulent amendment of the contract, the judge held that the client had no real prospect of showing that the architect was guilty of fraud in the circumstances of the case. In particular the explanation given by the client for only having realised that the manuscript amendments had been made just before the court enforcement proceedings of various changes in its personnel could not be accepted insofar as witness statements prepared for the adjudication by the client's chairman and former managing director and by the client's present managing director showed that they both had detailed knowledge in relation to the adjudication The judge concluded that even if the client had been able to establish such a "lack of credibility", it still could not be said that (1) this affected the adjudicator's jurisdiction to decide as he did or that (2) to enforce the decision would assist in the perpetration of a fraud.