UK: Technology and Construction Court ruling: Harlow and Milner Ltd v Teasdale

Last Updated: 20 March 2006
Article by Julian Bailey

In Harlow & Milner v Teasdale, the Court noted that, ordinarily, the issue of a statutory demand will not be the appropriate means of enforcing an adjudicator's decision; the most efficient way of enforcing an adjudicator's decision is to seek summary judgment in the Technology and Construction Court.

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The most efficient way of enforcing an adjudicator’s decision is to seek summary judgment through the Technology and Construction Court. There are very limited grounds on which a summary judgment application may be resisted by the unsuccessful party to an adjudication. In contrast, the commencement of bankruptcy or winding up proceedings may lead to prolongation of the point at which a judgment debt is obtained against the unsuccessful party, plus greater expense. Ordinarily, therefore, the issue of a statutory demand will not be the appropriate means of enforcing an adjudicator’s decision.

HHJ Coulson QC

Technology and Construction Court

The dispute giving rise to the adjudication concerned a contract, in the JCT Minor Works form, for the carrying out of building work to properties in Leeds. A dispute arose between the contractor and the owner as to the contractor’s entitlement to payment. The dispute was referred to adjudication. The adjudicator awarded the contractor some £90K.

Following the adjudication - and somewhat unusually – rather than proceeding to enforce the adjudicator’s determination by way of a summary judgment application, which if successful would give rise to a judgment debt, the contractor issued a statutory demand for payment against the owner for the £90K adjudicated to be owing, and then commenced bankruptcy proceedings against the owner when the statutory demand was unpaid. The owner resisted the bankruptcy proceedings, producing a lengthy affidavit in support of her position. Ultimately, the statutory demand was set aside by consent, and the issue of costs liability was left to the Judge in the summary judgment case to determine.

Subsequently, the contractor commenced proceedings in the TCC to enforce the adjudicator’s determination for the £90K, so as to crystallise the determination into a judgment debt. The owner resisted these enforcement proceedings on the basis that the £90K was not properly owing, as the owner had a valid counterclaim against the contractor for defective works. It was also contended by the owner that the adjudicator’s determination should be set aside on the basis of the adjudication having been conducted unfairly owing to the fact that it took place quickly. The owner argued further that she should not have to make payment to the contractor because there was a risk that if she was successful in subsequent proceedings in having the adjudicator’s determination reversed, the contractor would not be good for the money which had been paid over.

All of the owner’s arguments in the enforcement proceedings were rejected by HHJ Coulson QC, for the following reasons:

  • Defects: the owner could have raised the issue of defects in the adjudication, and to an extent did do so. The fact that the owner may, in subsequent proceedings be able to counterclaim in respect of the allegedly defective works was not a basis for resisting enforcement of the adjudicator’s decision.
  • Unfairness: the contention by the owner was that the adjudication was unfair because it was conducted too quickly. But HHJ Coulson QC held that this contention entirely missed the point: "Adjudication is supposed to be quick; that is its main feature". There was simply no evidence that the adjudication had been conducted in any way that was unfair to the owner.
  • Risk that contractor would be unable to repay awarded amount: the fact that a successful party in an adjudication may not be financially stable is not a reason for refusing to enforce an adjudicator’s determination. It may, however, provide a basis for seeking a stay of execution of judgment, pending final determination of the parties’ respective rights and obligations. But there was no evidence in this case of the contractor being likely to be unable to repay the adjudicated amount should it subsequently be ordered to repay that amount, or some part of it.

The grounds put up by the owner for resisting enforcement of the adjudicator’s determination were held to be so unmeritorious that HHJ Coulson QC ordered the owner to pay the contractor’s enforcement costs on an indemnity basis.

HHJ Coulson QC refused to make any order for costs in relation to the bankruptcy proceedings and, as a concluding remark, noted that the appropriate and most efficient way to enforce an adjudicator’s decision was by way of a summary judgment application in the TCC, and not (as this case demonstrates) by the commencement of bankruptcy proceedings, where the underlying issues in the adjudication may be re-ventilated, potentially leading to prolongation of the time at which the successful party in the adjudication is able to obtain judgment for the adjudicated amount. Ordinarily, therefore, the issue of a statutory demand will not be the appropriate means of enforcing an adjudicator’s decision.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 15/03/2006.

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