During the final few months of 2009 an unprecedented raft of cases came before the Technology and Construction Court (TCC) concerning applications to enforce adjudicators’ decisions. Generally speaking, where a party fails to comply with a decision it is open to the party seeking to rely on it to apply for summary judgment for the sums ordered by the adjudicator. Since this type of case first came before the courts in the late 1990s it has become settled law that the only grounds for challenging an adjudicator’s decision are that the adjudicator lacked jurisdiction to reach the decision that he/she has reached, or that the adjudicator has reached his decision without regard for the rules of natural justice. The general approach of the TCC is to enforce adjudicators’ decisions except where the defending party is able to fall back on one of these two limited grounds.
Coventry Scaffolding Company (London) v Lanscville Construction Limited [2009] EWHC 2995 (TCC) is one such case. The claimant in this case found itself in dispute with the defendant main contractor over a number of issues and two disputes were referred to the same adjudicator (in two adjudications); the first concerning the correct gross valuation of the claimant’s works and the second concerning the proper amount due and payable to the claimant at that interim stage. The claimant succeeded in both. The defendant failed to honour either of the adjudicator’s decisions. Court enforcement proceedings were commenced in October 2009 and the matter was listed for a hearing in November 2009. The claimant’s solicitors duly served the proceedings on the defendant and filed a certificate with the court confirming this. The defendant failed to answer the proceedings and did not lodge an Acknowledgement of Service with the court or file any evidence in response.
Mr Justice Akenhead held that it was clear in this case that both of the adjudicator’s decisions were enforceable and judgment was entered for the claimant for the sums claimed.
However the judge also went on to give some useful guidance. In this situation, the judge explained, a claimant/their legal representative should apply for judgment in default of an Acknowledgment of Service in the same way as a claimant would apply for judgment in the event of a default by a defendant in regular court proceedings. This is despite the fact that the period for filing an Acknowledgement of Service is usually abridged to just five days in proceedings to enforce an adjudicator’s decision, from the usual fourteen. The judge emphasised that there is no reason why a claimant should not be entitled to obtain judgment in default after this abridged period has elapsed.
This is welcome guidance from the court. Once the court is satisfied that service of the claim documentation has been properly carried out in accordance with any order made by the court, there is no reason why default judgment should not be entered.
The judge indicated that the TCC will henceforth encourage claimants, and those advising them, to apply for judgment in default as a routine measure where an Acknowledgement of Service is not filed within the abridged time period. The judge noted that the right of the defendant to apply to the court for the judgment in default to be set aside is however preserved.
This article was first published in Construction News Update, Spring 2010.
