Enforcing an adjudicator’s decision

3 September, 2008
by: Cripps

The Technology and Construction Court (“TCC”) Guide provides a swift procedure for enforcing decisions arising from adjudication.

 

The procedure

To enforce an adjudicator’s decision, the aggrieved party issues proceedings under CPR Part 8 by filing a claim form with the Court office. The claim form should identify:-

  • the construction contract;
  • on what basis the adjudicator was appointed, i.e. under the HGCRA, under an adjudication clause in a contract or by agreement between the parties;
  • the procedural rules used for the adjudication;
  • the adjudicator’s decision;
  • the relief sought e.g. a court judgment that a sum must be made or a court declaration as to the validity of a certificate;
  • the grounds for seeking that relief i.e. the reasons why you are entitled to that decision.

If the other party has no real prospect of defending their non-compliance with the adjudicator’s decision, the aggrieved party can apply for ‘summary judgment’ at the same time, rather than going through all of the procedural steps required to take a more complicated dispute to full trial over months or even years.

An application for summary judgment can be made using an application notice in which you also set out a proposed timetable for the case, the ‘directions’. The TCC Guide helpfully contains suggested directions. See www.hmcourts-service.gov.uk/docs/tcc_guide.htm#appendixf.

The claim form and the application should be accompanied by a witness statement or statements setting out the evidence relied on in support of both the adjudication enforcement claim and the associated procedural application. This evidence should ordinarily include a copy of the adjudicator’s decision.

The case will be assigned to a named judge who will manage the proceedings up to and including any hearing. He/she will usually give directions for the conduct of the paper application and the enforcement hearing within 3 working days of the application notice being lodged at court.

The directions will set a date by which the claim form, supporting evidence and court order providing for the hearing must be served on the defendant and will normally give the defendant at least 14 days from that date to serve any evidence opposing the adjudication application. The hearing date will usually be within 28 days of the directions being made. The periods may be reduced in more straightforward cases.

The enforcement hearing

All documents that will be referred to in the hearing should be lodged at the court one clear working day before the hearing. If it is your application you should prepare the bundle, in consultation with the defendant. The bundle should contain

  • the adjudicator’s decision
  • the documents that will be required at the hearing
  • copies of any authorities which are to be relied on
  • if there is any dispute to be resolved at the hearing, the relevant sections of the HGCRA, the adjudication procedural rules under which the adjudication was conducted, and copies of any adjudication provisions in the contract underlying the adjudication.

The parties should also file and serve short ‘skeleton’ arguments. These summarise their respective arguments as to why the adjudicator’s decision is or is not enforceable.

Like adjudication, the TCC’s Part 8 procedure is intended to provide a fast and effective route to collection of non-payments. Although the legal costs associated with adjudication are currently irrecoverable, a party who successfully enforces an adjudicator’s decision can usually recover the majority of their legal costs incurred during the proceedings.

The recent TCC case of Amber Construction Services v London Interspace HG Limited [2007] suggests that the cost of preparing for and issuing proceedings may be recoverable, even where the Defendant admits the debt as soon as proceedings are issued i.e. without entering into the proceedings by filing a defence.

Reviewed in 2015