In the recent case of Bexhill Construction Ltd v Kingsmead Homes Ltd, Her Honour Judge Kelly gave a useful reminder of the difficulty involved in resisting enforcement of an adjudicator's decision.
It could be said there wasn't much new in this case – broadly the Court restated the previously accepted orthodoxy. Paragraph 7 of the Judgment is a useful recap for those familiar with the concepts and a good primer for those less familiar.
Whilst the fundamentals might not be new, two things occur to me off the back of this judgment.
- The claim was issued on 15 March 2023 and heard on 17 May 2023, but the judgment wasn't handed down until 3 October 2023.
- The value of the adjudication decision was less than £50,000 – both parties' costs taken together would have approached the value of the decision.
Perhaps the takeaway from that might be that, whilst resisting enforcement is difficult, the right arguments and a busy Court can slow the enforcement down – if you're willing to pay the other side's costs in the long run.
Anecdotally, this seems to be becoming more commonplace. Even with the Court's strong support for adjudication, enforcement can take time. I have heard of at least one company becoming insolvent as a result of the delay in the enforcement of an adjudicator's decision.
What does this mean for the future? Adjudication is still the fastest route available, and in most cases parties do pay, but in a world where insolvency stalks the construction industry, will we see it becoming a more common tactical decision to try and drive your opponent under with costs and delay?
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