How Not To Resist Enforcement Of An Adjudicator's Decision - A TCC Guide

Written by Nathaniel Horrocks-Burns (Hutton Construction Limited v Wilson Properties (London) Limited [2017] EWHC 517 (TCC))

The Technology and Construction Court (TCC) generally enforces adjudication decisions, providing the adjudicator has decided the dispute that was referred to him and acted in accordance with the rules of natural justice. The TCC will only correct a decision in the event of: (i) collective admission of an error in the adjudication which the court has jurisdiction to correct, or (ii) clear-cut issues concerning the proper timing, categorisation or description of a payment application, payment notice or pay less notice.

Many parties seek to resist enforcement by arguing the adjudicator's decision was wrong. In Hutton, Coulson J warned against raising such arguments in enforcement proceedings.

Coulson J referred to cases in which the parties agreed an approach to resolving the dispute, highlighting the importance of the defendant issuing a Part 8 claim which (i) details the challenge to the adjudicator's decision, and (ii) gives the claimant the opportunity to understand the basis of the challenge and the declarations sought.

Without such consensus, he indicated a defendant should still issue a Part 8 claim, detailing the declarations sought or at least prepare a detailed defence and counterclaim to the enforcement, indicating the declaratory relief sought. The defendant should also demonstrate that:

there is a short, self-contained issue which arose in the adjudication which remains contested; and, the issue requires no oral evidence or other elaboration that would require more time than normally set aside by the TCC for an enforcement hearing; and, it would be unconscionable for the court to ignore the issue on a summary judgment application. In Hutton, an adjudicator decided a pay less notice issued to the Contractor (Hutton Construction) by the Employer (Wilson Properties) was invalid and ordered the Employer to pay £492,000. The Employer failed to pay and the Contractor issued enforcement proceedings...