In the recent case of LXB RP (Crown Road) Ltd v Squibb Group Ltd, the Court enforced an adjudicator’s decision, finding no grounds upon which to exercise its discretion and refuse enforcement of the decision on financial grounds.
The claimant had applied for summary judgment to enforce an adjudicator’s decision awarding the claimant liquidated and ascertained damages of c. £300,000. The defendant, concerned about the claimant’s ability to pay any further debts as they fell due on the final account between the parties, applied to the Court asking for a stay of execution and an order that the money be paid into Court or into an escrow account.
In making this application the defendant sought to rely upon Wimbledon Construction Company 2000 Ltd v Vago (2005) which set out six principles that should govern the exercise of the Court’s discretion when considering a stay of execution in adjudication enforcement proceedings. The six principles are summarised as:
- Adjudication is designed to be a quick and inexpensive method of arriving at a temporary decision;
- As a result, decisions are intended to be enforced summarily and the successful party (the claimant) in the adjudication should not be kept out of its money;
- In an application to stay the execution of summary judgment, the Court must exercise its discretion under CPR 47 with 1 and 2 in mind;
- The probable inability of the claimant to repay the judgment sum (being the sum awarded by the adjudicator) at the end of the substantive trial may constitute special circumstances within the meaning of CPR 47 rule 1(1)(a) rendering it appropriate to grant a stay;
- If the claimant is in insolvent liquidation, or there is no dispute that the claimant is insolvent, a stay will usually be granted; and
- Even if the evidence of the claimant’s financial position suggested that it is probable that it would be unable to repay the judgment sum when it fell due, that would not usually justify the grant of a stay if:
- The claimant’s financial position is the same or similar to its financial position at the time that the relevant contract was made; or
- The claimant’s financial position is due, either wholly, or in significant part, to the defendant’s failure to pay those sums which were awarded by the adjudicator.
In his judgment, Stuart-Smith J reiterated the principle that the decision as to whether or not to enforce an adjudicator’s decision is an exercise of the Court’s discretion, and that there must be a balance between enforcing valid adjudication decisions and risking future injustice if the party subsequently finds itself unable to pay what is due under the contract.
Having heard both parties’ evidence regarding the financial standing of the claimant, the judge was not satisfied that the claimant was in a worse financial position than it was when it first contracted with the defendant, nor was he satisfied that there was any significant risk that the claimant would be put into liquidation as this would be a breach of the claimant’s directors’ obligations to the company.
The Court could not conclude that there was a substantial risk that the claimant was unable to pay the defendant any sums due on a final account, and there was no basis on which to refuse to enforce the adjudicator’s decision. The Court’s discretion was therefore exercised in the claimant’s favour and the adjudicator’s decision was enforced with no stay of execution and no payment into Court or an escrow account.
The decision in LXB RP (Crown Road) Ltd v Squibb Group Ltd confirms and reiterates the very limited grounds for resisting enforcement of an adjudicator’s decision. This case also serves as a reminder of the importance of carrying out sufficient financial due diligence in respect of potential contract partners.
Further reading: LXB RP (Crown Road) Ltd v Squibb Group Ltd  EWHC 2669 (TCC)