Enforcing an adjudicator’s decision can be expensive, particularly as the courts have narrowed down the list of reasons for challenging the adjudicator’s jurisdiction. This means that weird and wonderful arguments are put forward to resist paying up. Running a ‘weird and wonderful’ argument, however, can be expensive and costs can rack up. In Savoye and Savoye Ltd v Spicers Ltd EWHC 33, Akenhead J gave some guidance on ‘proportionality’ in relation to the enforcement of an adjudication decision. It’s worth bearing this case in mind, so that if you ‘win’ in court you’re not left with a hefty legal bill, which you can’t pass on to the other side.
- if the costs claimed exceed the amount in issue, it’s likely that the costs will be deemed disproportionate;
- if the amount of time spent by your legal team exceeds the total length of the hearing, the courts will probably decide that the time spent is disproportionate;
- if the work carried out during the enforcement clearly duplicates work done in previous proceedings, such as spending time and money re-formulating jurisdiction arguments put before the adjudicator, then the duplicated work may be disproportionate;
- if the case is a test case, this may be a valid reason for spending longer preparing for the hearing and/or appointing a QC to act for you; and
- the courts will take into account the importance of the case to either party. If, therefore, the enforcement could ‘make or break’ a party, then it may be reasonable to appoint a QC, even though the sum in issue may be relatively modest.
In Savoye, the claimant’s bill of costs was £200,000+. The claim worth just under £900,000. Akenhead J, applied his guidelines and decided that the costs were disproportionate. He concluded that it was not a test case, not complex and was essentially a re-run of the same arguments and evidence before the adjudicator. He, therefore, reduced the costs to £96,000 on summary assessment.