What happens when a court is asked to enforce two different decisions reached in separate adjudications that decided different things but which might or do impact on each other? That situation arose recently in HS Works Limited v Enterprise Managed Services Limited  EWHC 729. Where either of the decisions is invalid on jurisdictional or natural justice grounds, the problem will not arise, because the unenforceable decision can be ignored for all practical purposes when considering whether the valid decision should be enforced. Where, however, there are two enforceable decisions that might or do impact on each other the case will be more complicated. To read the judgment click here.
HS Works v Enterprise: There were two adjudications, with two different adjudicators, who produced two decisions in February and March 2009. In the first adjudication, Enterprise was ordered to pay HS Works £1.8m plus the adjudicator’s fees. In the second adjudication, the adjudicator decided that the proper valuation of the sub-contract works, allowing for contra charges, was £23.253m. As a result, all or part of the sum decided to be due under the first decision could be repayable. Each party argued that the decision adverse to its interest was an invalid decision on the grounds of jurisdiction or natural justice.
The court held that both adjudication decisions were valid and enforceable and set out the steps to be considered when faced with a decision on how to deal with simultaneous applications for enforcement of two adjudication decisions, which decide different things but which might or do impact on each other:
- First, determine whether both decisions are valid;
- If both are valid, then it is necessary to consider if both are capable of being enforced or given effect. If one or other is not so capable, the question of set-off does not arise;
- If it is clear that both are capable of enforcement, the court should enforce or give effect to them both, provided that separate proceedings have been brought by each party to enforce each decision; and
- How each decision is enforced is a matter for the court. It may be wholly inappropriate to permit a set-off of a second financial decision as such in circumstances where the first decision was predicated upon a basis that there could be no set-off.
The court held that the order to be drawn should reflect the net effect of the two adjudication decisions.