This blog comes at a sombre time as it marks the recent passing of, to echo the words of Barack Obama, the “last great liberator of the 20th Century” and great humanitarian, Nelson Mandela (1918 – 2013). The recent case of J G Walker Groundworks Ltd v Priory Homes (East) Ltd  EWHC 3723 (TCC) in no way reflects the life and times of the great man but, perhaps, reminds us that we should all be a little more thoughtful and considerate in how we live and work.
The case concerned the enforcement of an adjudication decision. Briefly, the claimant sought to enforce an adjudication award in its favour. The adjudication was brought on the basis of a claim for non-payment for variations and additions s. The adjudicator awarded the full amount due.
During the enforcement proceedings the defendant initially submitted that “serious errors and inconsistencies” invalidated the award. However, this was abandoned (on the morning of the hearing!) in favour of jurisdictional arguments that centred around the adjudicator’s purported adoption of a limited, and very precise, interpretation of the contract and variations thereto as laid out in the Referral Notice.
Ultimately, this was rejected by the judge, who restated the position that it is the Notice of Adjudication that defines the scope of the referral (and not the Referral Notice). Aside from a correction in the calculation of interest, the judge enforced the decision in its entirety.
Interestingly, as the defendant’s challenge to the adjudicator’s jurisdiction was without merit, the judge directed that the defendant should be required to explain why it should not pay the costs of the application on an indemnity basis.
In summary, defendants in adjudication actions must:
- beware of making tenuous, fanciful, arbitrary arguments in, what would appear to be, a desperate attempt to avoid enforcement;
- remember that adjudications are, ultimately, rough justice and will be enforced as such by the judiciary; and
- the penalty for such an approach, in view of this case, is likely to be indemnity (i.e. penalty) costs.