In last week's case of Westshield v Buckingham Group [2013] EWHC 1825 (TCC) the Court had to decide whether to enforce an adjudicator's decision where the parties had given the adjudicator jurisdiction to determine who the parties to a contract actually were. The adjudicator had duly done so, but decided that the subcontractor in the contract was a company that was dormant.

The contractor was faced with making a payment, of temporarily binding effect, to either a dormant company, or, if it were the other possible entity, one that was in a creditors voluntary arrangement and this naturally caused it some concern so it tried to resist enforcement and obtain a stay of execution. The other possible subcontractor (also a party to the proceedings) did however say it would guarantee any sums paid to the dormant company and the judge was given comfort by that arrangement.

Surprisingly, an email discussing tactics which appears as if it should have attracted privilege, was disclosed by the main contractor and this appears to have influenced the judge in understanding the, in part, tactical nature of what the contractor was seeking to do through the dispute process.

The court held that fundamentally whichever company was the subcontractor they were in a similar, perhaps better in one case, financial position to that they were in when the contract was placed and the contractor knew the position of the companies when it commenced the adjudication. Coupled with the tactical manoeuvring and possible artifice of the situation that had been brought about and the proffered guarantee the judge told the contractor to pay up to the dormant company, just as the adjudicator had decided.