Written by Nathaniel Horrocks-Burns

(Hutton Construction Limited v Wilson Properties (London) Limited [2017] EWHC 517 (TCC))

The Technology and Construction Court (TCC) generally enforces adjudication decisions, providing the adjudicator has decided the dispute that was referred to him and acted in accordance with the rules of natural justice. The TCC will only correct a decision in the event of: (i) collective admission of an error in the adjudication which the court has jurisdiction to correct, or (ii) clear-cut issues concerning the proper timing, categorisation or description of a payment application, payment notice or pay less notice.

Many parties seek to resist enforcement by arguing the adjudicator's decision was wrong. In Hutton, Coulson J warned against raising such arguments in enforcement proceedings.

Coulson J referred to cases in which the parties agreed an approach to resolving the dispute, highlighting the importance of the defendant issuing a Part 8 claim which (i) details the challenge to the adjudicator's decision, and (ii) gives the claimant the opportunity to understand the basis of the challenge and the declarations sought.

Without such consensus, he indicated a defendant should still issue a Part 8 claim, detailing the declarations sought or at least prepare a detailed defence and counterclaim to the enforcement, indicating the declaratory relief sought. The defendant should also demonstrate that:

  • there is a short, self-contained issue which arose in the adjudication which remains contested; and,
  • the issue requires no oral evidence or other elaboration that would require more time than normally set aside by the TCC for an enforcement hearing; and,
  • it would be unconscionable for the court to ignore the issue on a summary judgment application.

In Hutton, an adjudicator decided a pay less notice issued to the Contractor (Hutton Construction) by the Employer (Wilson Properties) was invalid and ordered the Employer to pay £492,000. The Employer failed to pay and the Contractor issued enforcement proceedings. The Employer indicated it would resist enforcement, but did not serve a defence or counterclaim.

Instead, at enforcement, the Employer raised issues of fact, which supposedly went to the merits of the dispute – yet which were not raised during the adjudication – and failed to offer an explanation as to how or why the adjudicator was wrong. Further, the Employer failed to specify what declaratory relief was sought in the Part 8 claim it subsequently issued.

Coulson J concluded that the Employer's Part 8 claim could be pursued separately (subject to it being amended and a proper exchange of pleadings), but due to the Employer's procedural failings, it should not be considered at the enforcement hearing. He ordered payment of the disputed amount to the Contractor.

He made it clear that attempts to "shoehorn" the entirety of an adjudication dispute into an enforcement hearing undermines adjudication, reducing it to "the first part of a two stage process, with everything coming back to the court for review prior to enforcement".

Coulson J indicated that failure to follow the guidance set out in his judgment could lead to costs consequences, either for a defendant who unsuccessfully raises such a challenge on enforcement, or a claimant who refuses to agree that issues of this nature can be dealt with on enforcement where the court concludes that one of the exceptions applies.

How not to resist enforcement of an adjudicator's decision – A TCC Guide

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