Enforcing An Adjudicator’s Decision – Construction & Planning

Adjudication is a statutory dispute resolution procedure for the
construction industry, introduced by the Housing Grants,
Construction and Regeneration Act 1996 as amended by the Local
Democracy, Economic Development and Construction Act 2009
(“the Act”).

Question: Failure to comply with adjudication

Suppose that a referring party is successful in adjudication
proceedings and the adjudicator has given a declaration that the
responding party shall pay the referring party within seven days of
his/her decision a sum of money, what can/should the referring
party do if the responding party fails to comply with the decision
and does not make payment to the referring party of the sum of
money?

Answer Enforcing an Adjudicator’s Decision

The referring party can/should apply to the Technology and
Construction Court (“the TCC”) to enforce the
adjudicator’s decision. Generally, the TCC will enforce the
adjudicator’s decision unless the adjudicator plainly had no
jurisdiction or there has been a material breach of the rules of
natural justice.

Section 9 of the TCC Guide sets out the procedure for enforcing
an adjudicator’s decision as follows:

• In this example, the enforcement proceedings seek a monetary
  judgment so the referring party will need to commence CPR Part 7
  proceedings.




• To commence these CPR Part 7 proceedings, the referring party
  will need to file a claim form and particulars of claim with the
  court.




• The claim form should identify the construction contract, the
  jurisdiction of the adjudicator, the procedural rules under which
  the adjudication was conducted, the adjudicator’s decision,
  the relief sought and the grounds for seeking that relief.




• The particulars of claim will provide details of the
  claim.




• The claim form and particulars of claim will be accompanied by
  an application notice that sets out the procedural directions that
  are sought.




• The application will seek an abridgement of time for the
  various procedural steps (e.g an order that time for the responding
  party to file its Acknowledgment of Service be abridged to 4 days),
  and summary judgment under CPR Part 24.




• The application should be accompanied by a witness statement
  setting out the evidence relied on in support of both the
  adjudication enforcement claim and the associated procedural
  application.

Once you have filed with the court the aforementioned documents,
a TCC judge will ordinarily provide directions in connection with
the procedural application within 3 working days of the receipt of
the application notice at the courts.

The court order will include directions from the judge which
will typically deal with the following:

• the abridged period of time in which the defendant is to file
  an acknowledgement of service;




• the time for service by the defendant of any witness statement
  in opposition to the relief being sought;




• an early return date for the hearing of the summary judgment
  application and a note of the time required or allowed for that
  hearing; and




• identification of the judgment, order or other relief being
  sought at the hearing of the adjudication claim.

The court order will also include a direction providing that the
claim form, supporting evidence and court order providing for the
hearing are to be served on the defendant (the responding party) as
soon as practicable, or sometimes by a particular date.

After the provision of the court order and exchange of witness
evidence, but prior to the enforcement hearing, the Claimant (the
referring party) will file and serve a hearing bundle containing
the documents that will be required at the hearing.

The parties will also file skeleton arguments and copies of any
authorities which are to be relied on (preferably as an agreed
joint bundle), summarising their respective contentions as to why
the adjudicator’s decision is or is not enforceable.

Finally, the parties will, prior to the summary judgment
hearing, both file and serve their statement of costs. This is to
enable the Court to make a summary assessment of costs at the
hearing.

The hearing will then take place where the judge will hear
submissions from both parties before determining whether to enforce
the adjudicator’s decision. If the judges enforces the
adjudicator’s decision, then summary judgment will be entered
for the Claimant in the sum claimed and the Defendant will be
ordered to pay that sum by a certain date (usually within 7 days of
the date of the order). There will also be an order as to
costs.

If the Defendant fails to pay the sum ordered by the court by
the deadline, there are numerous options available to the Claimant
to enforce the court order including but not limited to:

• Writ of control and warrant of execution – Execution
  requires the issue of a court document (in the High Court [which
  the TCC is part of] a writ of control and in the County Court a
  warrant of control), which commands an enforcement officer to take
  control of and sell a judgment debtor’s goods to raise funds
  to satisfy the judgment debt.




• Apply to the court for a charging order




• Apply to the court for a third party debt order




• Insolvency proceedings

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

POPULAR ARTICLES ON: Real Estate and Construction from UK