A couple of novel points in relation to enforcement have been considered over the last quarter: (a) what to do when an adjudicator recalculates his sums, rather than simply correcting an arithmetical error; (b) can a decision be enforce in circumstances where the parties have entered into a settlement agreement after the decision; (c) the effect of a Company Voluntary Arrangement (CVA) on enforcement; and (d) whether an adjudicator’s failure to conduct a site visit can amount to a breach of natural justice. The courts continue to stress that an adjudicator’s decision will be enforced in all but the rarest of cases.

In YCMS Limited v (1) Stephen Grabiner (2) Miriam Grabiner [2009] EWHC 127 (TCC) the TCC held that an arithmetical error in an adjudicator's award was capable of correction under the slip rule, but that where, as here, the adjudicator went further and actually recalculated the sums due using a different method (by which he introduced a further error), the revised award was invalid. Although the amended decision could not be enforced, the unamended decision would be enforced. To read the judgment click here.  

Similarly, in Able Construction (UK) Ltd v Forest Property Development Ltd [2009] EWHC 159 (TCC), an adjudicator’s decision was enforced after the defendant failed to comply with a settlement agreement made between the parties following the adjudicator’s decision. Enforcement was, however, limited to the sums agreed in settlement. The defendant was ordered to pay the claimant’s costs on an indemnity basis and the claimant, in addition, was awarded interest on the outstanding debt at 8% above base rate, pursuant to the Late Payment of Commercial Debts (Interest) Act 1998 – a clear warning shot that parties who defend applications for enforcement simply to delay payment of money due will be penalised. To read the judgment click here.  

In Mead General Building Ltd v Dartmoor Properties Ltd [2009] EWHC 200 (TCC), the court had to consider, for the first time, the issue of whether the existence of a Company Voluntary Arrangement (CVA) automatically meant that, in relation to an application for summary judgment to enforce an adjudicator’s decision, the court should grant a stay of execution, pursuant to RSC Order 47.1. The court concluded that a CVA, although relevant, was not determinative - it should not automatically be inferred that the claimant will be unable to repay any sums paid out in accordance with the judgment simply because a CVA is in place. The circumstances of the CVA, the claimant’s current trading position and the issue of whether or not the claimant’s financial position and/or the CVA is due, either wholly or in part, to the defendant’s failure to pay the sums awarded by the adjudicator will also be considered. Mead’s financial troubles were directly caused by Dartmoor’s failure to pay the sums found by the adjudicator to be due and Mead was simply too small a business to be able to withstand losses of the magnitude created by Dartmoor. Despite the difficulties created by Dartmoor’s non-payment, however, Mead continued to trade successfully, under the terms of the CVA. As a result, the court refused to order a stay of execution. To read the judgment click here.  

In Gipping Construction Limited v Eaves Limited [2008] EWHC 3134 (TCC), an unsuccessful claimant tried to argue that the adjudicator’s failure to carry out a site inspection before making his decision on liability amount to a breach of the rules of natural justice. The court disagreed, noting that a site inspection was entirely a matter of discretion. HHJ Akenhead added: ‘inevitably the justice that is meted out is not always as pure and as well prepared for as cases which proceed to a full trial in this court or to a substantive hearing before an arbitrator… This court should not criticise an adjudicator for deciding not to have a site visit when it is clear that the adjudicator believed in good faith that he had sufficient information for him to reach his decision within the fairly short period allowed by the parties and where it has not been and cannot be established that it was essential that a site visit take place.’ To read the judgment click here.