Eurocom Ltd v Siements plc (No 2) (TCC - 12.2.2015)

The sub-contractor should pay the contractors costs of the sub-contractors unsuccessful summary judgment application to enforce the adjudicators decision on an indemnity basis

Technology and Construction Court
Ramsey J


12th February 2015

Ramsey J held on the substantive issues in the enforcement proceedings that summary judgment should not be ordered to enforce the adjudicator's decision where there was a strong prima facie case that the adjudicator's appointment was a nullity because of a fraudulent misrepresentation made in completing the RICS adjudicator nomination form by those acting on the sub-contractor’s behalf. The judge went on to hold that the sub-contractor should pay the contractor’s costs of the enforcement proceedings on an indemnity basis.
The evidence of the employee of the sub-contractor’s representative in the adjudication clearly justified the finding made of a very strong prima facie case of fraudulent misrepresentation. Whilst the legal basis may have taken some analysis, the well-known general principle that fraud unravels everything should be applied to the instant case. That evidence and its effect was a matter which should properly have been taken into account by the sub-contractor at an early stage before issuing an application for summary judgment and in any case when the importance of the point was raised by the court. A strong prima facie case of fraud in the context of summary judgment application is a matter which takes a case such as this out of the norm. There are not many, if any, cases of adjudication enforcement which raise that sort of contention. However, this was a case where there was unreasonable conduct to a high degree on the part of the sub-contractor’s representatives which was quite apart from the very strong prima facie case of fraudulent misrepresentation. Those matters took this case out of the norm and justified an order for costs on an indemnity basis.
Whilst the sub-contractor’s concern to be paid the substantial sums awarded by the adjudicator despite the conduct of their agents in completing the RICS nomination form, the conduct in relation to this aspect was unreasonable to a high degree in failing (i) to deal with the obvious difficulties by not responding to the enquiries made and therefore ignoring the serious consequences until the court intervened and (ii) to realise or not take account of the matters which were apparent when the employee produced his witness statement in which he gave evidence which clearly led to the findings made by the court.