Pictured: Louise Shiels and Keith Kilburn

A&V Building Solution Limited (“A&V”) was engaged as sub-contractor for plumbing installation works at Mouslecoomb University campus. Disputes arose under the sub-contract and A&V commenced an adjudication against J&B Hopkins Ltd (“JBH”) alleging that JBH was in breach of the sub-contract in various respects and claimed payment of £455,526.53.

In the event, the adjudicator decided that A&V had failed to prove any entitlement. The adjudicator proceeded to value the sub-contract works and decided that A&V was liable to pay JBH the sum of £82,956.88. A&V did not comply with the adjudicator’s decision and JBH commenced enforcement proceedings in the Technology and Construction Court.

A&V raised a number of challenges to enforcement, which included alleged errors in the decision, an allegation of bias on the part of the adjudicator and that the decision would be financially ruinous for A&V.

In considering these challenges the court referred to J & B Hopkins Limited v Trant Engineering Limited [2020] EWHC 1305 (TCC) where at paragraph 14 Fraser J said: “There are on contested enforcement applications, therefore, two bases only upon which a decision will not lead to summary judgment as the jurisprudence is conventionally understood. These are if the decision was one made without jurisdiction; and the other is if the decision was made in the presence of material breaches of natural justice.”

The court did not accept the errors alleged by A&V, nor did it find anything which justified the allegation of bias. It was noted by the court that “[i]f there are, as I have suggested, some areas where, with the benefit of hindsight, things might have been done differently, there is nothing in the matters raised before me which crosses the threshold so as establish a breach of natural justice which would justify me in refusing to enforce the Decision”.

As to the unusual feature of this case where it was the Referring Party who was ordered to make payment, even though the court did doubt whether it was within the adjudicator’s jurisdiction to order payment to JBH, summary judgment was nevertheless granted as it was considered legitimate for the adjudicator to conclude that a sum was due or would become due to JBH and this was binding on A&V.

This case serves as a useful reminder of the court’s attitude to enforcement of an adjudicator’s decision. The numerous challenges advanced by A&V in this case gained little traction with the court and the bar for any such challenges is a high one. Given the unexpected result from A&V’s perspective, the case also serves as a warning to parties to take care when framing the referral and to ensure that the evidence necessary to support the case being advanced is submitted to the adjudicator.

Louise Shiels is a partner and Keith Kilburn is a legal director at Brodies