Enforcement of an Adjudicators decision.

Enforcement of an Adjudicators decision.

So the adjudication has been completed and the decision has been communicated, “You have won”… The only problem is the other side is not playing fair, no jurisdiction or natural justice challenge were made during the process and neither party has reserved it position during the adjudication.

So how do you enforce an Adjudication decision?

It is now accepted practice that the next step in this process is to apply to the Technology and Construction Court (TCC) for Summary Judgement, notwithstanding that alternative methods have been attempted with varying degrees of success.

Enforcing the decision

Section 9 of the Technology and Construction Court Guide is devoted to the court's role in the business of adjudication, and in particular it sets out a special procedure for enforcing adjudicator's decisions. The procedure is the same whether the adjudication arises under the HGCRA, a standard contract term or is simply being followed by the parties on an ad hoc basis.

The type of application depends on the nature of the decision and whether to apply the rules applicable in the Court Procedure Rules (CPR) Part 7 or Part 8?

Any claim for enforcement of an adjudicator's decision is appropriate for Part 7 and Part 24 summary judgment.

CPR Part 7: where there is a dispute of fact, or where the successful party wishes to enforce the Adjudicators decision on the payment of money then CPR Part 7 and Part 24 are applicable

• If there was a binding contract between the parties.
• Contents or relevance of any conversations relied on as having contractual status or effect.
• what the terms of the contract are, particularly where oral discussions are in issue;
• which documents make up or are incorporated within the contract between the parties;
• Claims where the facts may suggest an implied term of duty of care is involved;
• The payment of money.

Cases which are suitable for the alternative procedure in Part 8 include disputes as to:

• the correct nominating body;
• the proper construction of the contract documents;
• the correct application of a statute (especially HGCRA / LDEDCA) where there is little or no factual dispute;
• The existence and/or scope of a duty of care at common law in circumstances where there is no or little dispute about the relevant facts.
• the existence and/or scope of a statutory duty;

The process

How to make the accelerated application?

To start with, the claimant should lodge the following documents at court:

• Claim form and particulars of claim. The claim form and particulars of claim should include details of the adjudicator’s decision and the relief sought.
• Notice of application. The notice (Form N244) should request an abridgement of time (that is, a shorter period for the defendant to respond).
• Witness statement. The claimant should support the claim form and notice of application with a witness statement.

The claimant should mark the documents: “paper without notice adjudication enforcement claim and application for the urgent attention of a TCC judge”.

What will the TCC do when it receives my application?

• A TCC judge will generally deal with the application on paper within three working days. The judge gives directions, which will include when the defendant should file an acknowledgement of service, when the defendant should serve its evidence and the date for a full hearing (usually within 28 days of the order).
• If the defendant takes no part in the application?
• If the defendant fails to acknowledge service of the claim form and summary judgment application, the claimant should apply for judgment in default of acknowledgement of service. If the defendant acknowledges service, but then indicates it will take no further part in the proceedings, the claimant should apply to the court to bring the hearing date forward.

Hearing the application

The court hearing to enforce an adjudicator’s decision will usually take place within 28 days of the judge’s directions.

At least 24 hours before the hearing, the parties should lodge an agreed bundle of documents with the court.

At the hearing, the court will decide whether to enforce the adjudicator’s decision. The court will give reasons for the decision, usually in a written judgment.

Severability of adjudicators' decisions

A further practical issue that arises in adjudication enforcement is whether some part of an adjudicator's decision can be salvaged where only part of that decision has been tainted by lack of jurisdiction or breach of natural justice. The established view that decisions were not severable has now been reviewed and overturned and in some cases where it is possible to sever the decision into enforceable and non-enforceable portions this has been done.

For further information or assistance please contact us for a free consultation.

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