Enforcement and recovery ⁽¹⁾

Is it worth powder and shot?

It is an unfortunate fact of life that having procured a judgment, a final arbitral award or an adjudicator's decision that such a magic piece of paper might not always be worth attempting to enforce. This is one of the most important reasons why from first principles it is important for a contracting party to always check out its opposite number before entering contractual relations and regularly thereafter. Inevitably the construction industry swings into recession on a cyclical pattern and it is most important therefore to keep an eye on monitoring your opponent. This is now once again becoming more important as the economic indicators tend to show we are now moving into recessionary times. If the defendant/respondent simply does not have the money to pay then there is no legal procedure yet known to man for getting blood from a stone. No amount of assistance from the Courts will enable an insolvent company to produce money it does not have. Before attempting to enforce an arbitral award, a judgment or an adjudicator's decision it is therefore important to ask whether the assets liquid or otherwise are there to make a recovery. Company searches of course can now be performed on line, various company agents offer monitoring services and enquiry agents have become far more sophisticated than they were a few years ago. Most construction lawyers know which firms they should turn to. By all events it is important to investigate and monitor the losing party's position so that informed decisions are made before enforcement steps are taken.

Is there a dispute?

From the arbitral arena we know there must be a dispute or difference, which has crystallised before the parties can elect to arbitrate. Be that arbitration provided for expressly by an arbitration clause contained within the relevant contract or some ad hoc arrangement.

1. This paper is deliberately prepared with an emphasis on adjudication.

It does not of course usually take very much to establish a dispute in the normal course of events as Templeman LJ once said ⁽²⁾: "But the fact that the plaintiff makes certain claims which, if disputed, would be referable to arbitration and the fact that the defendant then does nothing (he does not admit the claim, he merely continues a policy of masterly inactivity) does not mean that there is no dispute. There is a dispute until the defendant admits that the sum is due and payable …" Slightly more recently Saville J as he then was said the modern view is: "One can have a dispute about who won last year's boat race"⁽³⁾.

However, on the other hand we have authority ⁽⁴⁾ which show us that if the claim is not one which is met with a clear rejection, but with a request for further information or even with only a stalling reply, then no dispute may arise. On the other hand, neither side should count on avoiding the evolution of a dispute simply by not answering letters.

One thing is clear, and that is that the burden is on the party claiming the submission to arbitration to prove that there is a dispute. Every case is heavily dependent on its facts. No formal claim is required as was made clear by His Honour Judge Bowsher QC ⁽⁵⁾.

In the adjudication arena Section 108(1) of The Housing Grants, Construction and Regeneration Act 1996 ("the Act") provides:

A party to a construction contract has the right to refer a dispute arising under the contract for adjudication under a procedure complying with this section.

For this purpose "dispute" includes any difference.

Two questions therefore arise when considering whether to refer a matter to adjudication.

1. is there a dispute?; and
2. if there is a dispute, is it under the construction contract?

A party defending an application to enforce an adjudication decision will often try to argue that there was no dispute, and that there was nothing for the adjudicator to decide upon, and that his decision was therefore a nullity. In principle, this is a perfectly respectable line of attack: there is no right to refer all matters to adjudication, only disputes. If the matter referred is not a dispute, the adjudicator will not (without the agreement of the parties) have jurisdiction to decide it. It is therefore important to be sure that there is a dispute, before commencing an adjudication.

Under section 108 of the Act, "dispute includes any difference". That is where the guidance ends. One simply has to stand back from the matter and ask oneself whether it can properly be called a dispute. That is what the Courts do. They approach the matter using common sense, and with regard to the plain meaning of the words "dispute" and "difference".

2. Ellerine Brothers (Pty) Limited v Klinger [1982] 1 WLR 135

3. Hayter v Nelson [1990] 2 Lloyds Reports 265; s9 of The Arbitration Act 1996 does not impose a difficult task to surmount on a stay application

4. such as Monmouthshire County Council v Costelloe & Kemple Limited [1965] 5 BLR 83 and Cruden Construction Limited v Commission for New Towns [1995] 2 Lloyds Reports 387

5. In Secretary of State for Foreign and Commonwealth Affairs v the Percy Thomas Partnership and Kier International Limited (1998).

It is usually easy to recognize a dispute when you see one. Inevitably, there are borderline cases. For example, where one party is simply refusing to correspond on a matter, it is not always straightforward to say whether they are in dispute about it. Sometimes silence can indicate that a dispute has arisen. However, the referring party should be sure to give the other a reasonable deadline to state their view, before concluding that there is a dispute to refer to adjudication ⁽⁶⁾ .

Is the dispute within the four corners of the HGCRA?

It is not every dispute or difference between parties to a construction contract that can be referred to adjudication. Section 108(1) refers only to "a dispute arising under the contract". If the dispute arises other than under the contract it is not subject to the statutory right to refer ⁽⁷⁾.

Again, there is no special formula to apply to test whether a dispute is one arising under a contract. A dispute under a construction contract will usually concern the performance of duties provided for in the contract. As a rough and ready guide, if the dispute cannot be expressed with reference to particular provisions in the contract, be careful about referring it to adjudication. So, for example, in Ashville Investments v Elmer Contractors [1987] CL 10 Con LR Lord Justice Balcombe said, "such a dispute (about a mistake leading to rectification) is not as to any matter or thing arising under the contract. Similarly, a dispute between the parties as to whether an innocent misrepresentation, or negligence mis-statement, which led Ashville to enter the contract is not a dispute as to any matter arising under the contract."

It is therefore important to be aware of the exclusionary limitations that do exist.

There are other exclusionary rules to look out for. For example, whether the dispute is a "construction contract" within the meaning of Section 105 of the Act. There is already a body of legal authority on these matters and I refer you to those decisions ⁽⁸⁾.

It is also not uncommon for an argument to be put up at enforcement stage that the dispute to be decided by the adjudicator is not covered by an adjudication agreement. It was argued in Northern Developments (Cumbria) Limited v J&J Nichol (2000) that a repudiation of a contract, accepted by the innocent party, had brought the contract to an end, and that therefore there was no effective agreement to refer the dispute to the adjudicator because it could not arise "under the contract". Judge Bowsher QC quickly kicked that one into touch when he held that the House of Lords declared 60 years ago in Heyman v Darwins that acceptance of repudiation did no more than bring performance of the contract to an end - the contract itself still existed and all rights arising under it remained enforceable.

A similar argument had been developed by the defendant in A&E Maintenance and Construction Limited v Pagehurst Construction Services Limited (1999) where Judge Wilcox found that the adjudication provisions survived the determination of the subcontract.

There is of course no end to the inventiveness of challenges and enforcement and this will continue to provide a colourful area to the law.

The TCC embraced adjudication

After you have referred a dispute to adjudication and obtained a decision, what do you do if the other party refuses to honour it? How is the decision enforced?

The starting point is section 108(3) of the Act. This provides:

The contract shall provide that the decision of the adjudicator is binding until the dispute is finally determined by legal proceedings, by arbitration (if the contract provides for arbitration or the parties otherwise agree to arbitration) or by agreement.

The parties may agree to accept the decision of the adjudicator as finally determining the dispute.

So construction contracts to which the Act applies must provide that the decision of the adjudicator is binding until finally determined by legal proceedings, by arbitration, or by agreement. If they do not, paragraph 23(2) of the Scheme for Construction Contracts (England & Wales) Regulations 1998 ("the Scheme") becomes a term of the contract. This provides that:

The decision of the adjudicator shall be binding on the parties, and they shall comply with it until the dispute is finally determined by legal proceedings, by arbitration (if the contract provides for arbitration or the parties otherwise agree to arbitration) or by agreement between the parties. the decision of the adjudicator is binding on the parties, and they shall comply with it until the dispute is finally determined by proceedings, arbitration or agreement.

As a matter of contract, therefore, an adjudicator's decision is binding. But how is this binding decision enforced?

6. See decision in Sindall Limited v Solland Limited (2001) (unreported), a decision of His Honour Judge Humphrey LLoyd QC handed down on 15 June 2001.

7. See Fillite (Runcorn) Limited v Aqua Lift Limited [1989] 47 BLR 27 where the Court of Appeal said that the words "disputes arising under a contract" is not wide enough to include disputes which do not concern obligations created by or incorporated in that contract. See also Government of Gibraltar v Kenny [1956] 2 QB 410 where Sellars J said it was clear that "arising out of" is a much wider formulation than "arising under" the agreement.

8. Palmers Limited v ABB Power Construction Limited [1999] TLR 6.10.99; Homer Burgess Limited v Chirex (Annan) Limited [1999] CILL 1585; Nottingham Community Housing v Powerminster (2000); Fence Gates Limited v James R Knowles (2001); ABB Zantingh Limited v Zedal Building Services Limited (2000)

It is a role of the Courts to enforce adjudicators' decisions. The group of Courts which specialise in construction disputes is the Technology & Construction Courts (the TCC). The judges who sit in these Courts have embraced adjudication and the underlying principles which lead to its introduction. They recognize that the idea behind the Act is that disputes are dealt with quickly. They understand that the tight timetable sometimes means that the adjudicator makes mistakes. Most importantly, they appreciate that for adjudication to work, they will have to enforce these sometimes imperfect decisions ⁽⁹⁾.

As a result, adjudicators' decisions have been enforced by the Courts even if the decisions were demonstrably wrong ⁽¹⁰⁾, if there were counterclaims for defects to work ⁽¹¹⁾, or if proceedings on the dispute referred to adjudication were continuing ⁽¹²⁾.

Although Macob has been subjected to criticism (which we will look at later), the Court's approach is in my opinion summarized more or less correctly by Sir John Dyson in Macob Civil Engineering Ltd v Morrison Construction Ltd (12 February 1999). The facts of the case need only be briefly addressed. Morrison Construction were the main contractor at a shopping centre in Carmarthen. Macob were its groundwork subcontractor. A dispute arose about the valuation of an interim application. Macob called for an adjudicator to decide the difference of opinion, the Chartered Institute of Arbitrators appointed an adjudicator and within 28 days he made his decision.

The subcontract did not comply with section 108 of the Act so the Scheme applied. The adjudicator decided that Morrison's in house payment provisions did not provide an adequate mechanism for interim payment, so Scheme provisions for payment applied. He also decided that the Notice of Withholding did not comply with the Scheme, and that Morrison owed monies, which were to be paid forthwith together with interest to Macob.

Morrison did not comply and so enforcement proceedings began. Morrison's defence to enforcement was that that the Adjudicator's decision was invalid because he had made a technical error by not hearing argument on whether Morrison's payment provisions in their subcontracts were in accordance with the Act and that the failure to hear the argument was in breach of natural justice.

Sir John Dyson, the senior Judge in the Technology and Construction Court at the time was asked not to decide whether the adjudicator had gone wrong with his procedure, but simply to refuse to oblige Morrison to pay out while the dispute about the decision was sent to trial or arbitration. The argument in essence was that no-one yet knew whether the decision was valid and enforceable, and it should not be enforced until they did.

Sir John Dyson said:

It will be seen at once that if this argument is correct, it substantially undermines the effectiveness of adjudication. The intention of parliament in enacting the Act was plain. It was to introduce a speedy mechanism for settling disputes in construction contracts on a provisional interim basis, and requiring decisions of adjudicators to be enforced pending final determination of disputes by arbitration, litigation or agreement. However as there was an arbitration clause in Morrison's contract they argued that the question of whether a proper decision had been made should go to arbitration

If Morrison were right, all a disappointed party to an adjudication would have to do is tell a Court that an argument about the validity of a decision had occurred, and that the dispute should be decided at arbitration or litigation. Sir John Dyson decided that avoiding drawn out proceedings to settle construction disputes was precisely "the mischief at which the Act was aimed."

His approach was that provided the decision of an adjudicator was on the issue referred (whether or not the decision was wrong), it is still a decision on the issue, and binding.

He put it this way:

19. At first sight, it is difficult to see why a decision purportedly made by an adjudicator on the dispute that has been referred to him should not be a binding decision within the meaning of section 108(3) of the Act, paragraph 23(1) of the Scheme and clause 27 of the contract. If it had been intended to qualify the word "decision" in some way, then this could have been done. Why not give the word its plain and ordinary meaning? I confess that I can think of no good reason for not so doing, and none was suggested to me in argument. If his decision on the issue referred to him is wrong, whether because he erred on the facts or the law, or because in reaching his decision he made a procedural error which invalidates the decision, it is still a decision on the issue. Different considerations may well apply if he purports to decide a dispute which was not referred to him at all.

9. As illustrated by the Court of Appeal decision in Bouygues UK Limited v Dahl-Jensen UK Limited [2000] TLR 17 August 2000 which confirmed that a mistake does not invalidate the decision or render it enforceable, provided of course that the right question is actually answered.

10. Macob Civil Engineering Ltd v Morrison Construction Ltd (12 February 1999)

11. A and D Maintenance and Construction v Pagehurst TCC, HHJ David Wilcox, 23 June 1999

12. Herschel v Breen TCC, Sir John Dyson, 14 April 2000

In short, the Courts will generally enforce decisions if the adjudicator answered the right question in the wrong way, but will not do so if he answered the wrong question. A decision which confines itself to the matters referred to adjudication will usually be binding ⁽¹³⁾.

So assuming the decision is binding on the parties, and will be enforced by the Courts. By what procedure shuld it be enforced? What steps should one take to ask the Courts to enforce an adjudicator's decision?

In most cases, the appropriate method will be to seek summary judgment. Summary judgment is brought under Part 24 of the Civil Procedural Rules. This provides that:

the Court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if -
it considers that -
…
a. the defendant has no real prospect of successfully defending the claim or issue; and
b. there is no other compelling reason why the case or issue should be disposed of at a trial.

Summary judgment is a judgment on the merits of a case which avoids the need for a trial. Its main advantages are that it is fast, and avoids expense.

As a matter of contract, parties to an agreement to which the Act applies are obliged to obey adjudicators' decisions. As I have said, there are not many good reasons for failing to do so, even if the decision is wrong. If they fail to obey the decision therefore, there may be good prospects of enforcing it by asking the Court to give summary judgment.

The judges in the TCC have enthusiastically supported the enforcement of adjudication decisions by applications for summary judgment. They make every attempt to hear the application quickly and are usually willing to make orders expediting the process further. For example, the Court will commonly order that the defendant has less time than usual to prepare his response to the application.

An application for summary judgment is usually made in this way. The claimant:

1. Prepares a Claim Form. The claim is simple. The defendant has promised under his contract to comply with adjudicators' decisions. But there has been a decision with which he has refused to comply.
2. Makes an application to shorten the time the defendant has to:
   a. acknowledge service of the Claim Form; and
   b. serve his written evidence for the summary judgment application.
3. Serves his witness statement in support of that application;
4. Once the Court has made its order, the Claimant immediately serves the Claim Form, together with a draft of the application for summary judgment and evidence in support of it.

If this flurry of activity is not enough to cause the defendant to pay (it often is), the summary judgment hearing may be contested. It will be up to the defendant at that hearing to explain why he need not comply with the adjudicator's decision.

If the defendant pays up before the summary judgment hearing, he will usually also be required to pay the claimant's costs of preparing the application. If he refuses to pay those costs, the claimant can attend the hearing simply to ask the Court to order him to do so.

Whilst the emphasis of this paper is on enforcement and recovery in the adjudication arena, it would not be complete without a word or two on the power of the Court in relation to enforcement of an award. Section 66 of the Arbitration Act 1996 deals with enforcement. It applies wherever the seat of the arbitration is, so that an arbitration award made in Germany, for example, may be enforced in England under this provision. It is an example of how legislation is being supportive of arbitration and it is a provision which the parties may not exclude by agreement.

There are two methods of enforcement available under section 66. They are cumulative rather than alternative. The first is an application directly to enforce award in the same manner as a judgment or order to the same effect. If permission is given, to use the current vernacular, the applicant may issue execution upon the award as if it were a judgment, without actually entering a judgment. Court procedures are available then to enforce the award. The Court's powers are wide so that where the award is for payment of monies such procedures include the seizure and sale of the Respondent's goods; the interception of a debt due to the Respondent by garnishee and the charging and sale of the Respondent's assets.

13. However there is a distinct judicial trend, mainly coming from the Scottish Courts, which is critical of the highly purposive approach that the Courts in England and Wales have taken to the interpretation of the HGCR Act as highlighted in such decisions as Macob and Outwing. For example, Lord Macfadyen who is hesitant about keeping his hands off decisions unfairly reached or plainly and fundamentally wrong has indicated that the right approach may lie in the case of Anisminic Limited v Foreign Compensation Commission (1969) ZAC 147. In that House of Lords case Lord Reid explained that seriously wrong decisions which are so flawed should not stand. He listed examples such as deciding a question, which was not referred to the tribunal; refusing to take account of something material to the case, and basing the decision on a matter that was not a matter under the contract.
Very much more recently in Ballast plc v The Burrell Company (2001) Lord Reed said he would be slow to insist that an adjudicator's decision should always be binding, notwithstanding possible errors of law, procedural unfairness, etc, the Court will step in and stop it. In another recent Scottish decision, SL Timber Systems Limited v Carillion Construction Limited (2001), it was said that an error on the part of an adjudicator will not afford ground for refusals of enforcement, unless the error was of such a nature that the adjudicator's decision was, as a result, one which he had no jurisdiction to make.

The second method, where permission has been given, is an application to enter judgment in the preferred terms of the award. There may, for example, be advantages in proceeding to the second stage rather than being confined to the first. For example, the applicant may sue on the judgment or otherwise proceed by execution or registration or other method of enforcement in a foreign Court; or he may obtain recognition of the judgment in a foreign Court, through the New York Convention procedures, or he may rely on a judgment as a judicial resolution of the issues that prevents any other action being brought in a foreign jurisdiction ⁽¹⁴⁾.

Section 66(4) provides that nothing within Section 66 affects the recognition or enforcement of an award under the Geneva Convention or under the New York Convention.

Procedurally it is all quite straightforward and provided for by CPR Part 49. The application is made to the Commercial Court but applications from there are commonly transferred to the TCC. The application is usually made without notice on form 8A. It must be supported by a witness statement or affidavit exhibiting the arbitration agreement and the original award; it should give details of the names and relevant addresses of the applicant and of the person against whom it is sought to enforce the award; stating either that the award has not been complied with or the extent to which it may have been in part. The Court may then given directions for service including service out of the jurisdiction.

The waters became muddied

In the context of adjudication enforcement I mentioned a moment ago that the Courts would generally enforce decisions if the adjudicator answered the right question (even if the answer was wrong), but will not do so if he answered the wrong question. This appeared to be the case in initially, but is not quite the position now.

As I have said, in the first Court case concerning the enforcement of adjudication decisions, Macob, Sir John Dyson appeared to be saying that provided the adjudicator answered the question referred to him, it would be enforced, regardless of whether the decision was correct, or whether the adjudicator was guilty of some procedural error. This had the merit of being entirely clear, and relatively straightforward to apply.

Indeed, in that case Sir John Dyson also formed the strong provisional view that a challenge to the adjudicator's decision on the basis of an alleged breach of natural justice was "hopeless".

His Honour Judge Thornton adopted a similar approach in Sherwood & Casson Limited -v- Mackenzie (unreported) (30 November 1999). After a review of the authorities he summarised the legal position in this way:

A decision of an adjudicator whose validity is challenged as to its factual or legal conclusions or as to procedural error remains a decision that is both enforceable and should be enforced

14. It is worth noting that a Court cannot, when entering judgment in terms of an award, add post award interest if this was not expressly provided for in the award itself.

However, it is not difficult to think of circumstances where this approach could lead to injustice. For example, imagine a gross procedural error, such as an adjudicator refusing to read one party's submissions because they were not double spaced ⁽¹⁵⁾. At first sight, if the law was as stated by His Honour Judge Thornton, judges would be led to enforce a decision despite such conduct, provided it addressed the right question.

Considerations such as this have lead to a refinement of the Court's approach. The position is now more complex than appears from a reading of Macob. In another recent Scottish case ⁽¹⁶⁾, Lord Macfadyen expressed reservations about both Sir John Dyson's suggestion in Macob that a decision would be enforced despite a procedural error, and of Judge Thornton's summary of the law in Sherwood. He expressed himself in this way:

I also accept that an adjudicator's decision will be enforceable even if it can be shown that the adjudicator has in making his determination made an error of fact or law. On the other hand, if the adjudicator has made a determination that he had no jurisdiction to make, his decision will be ultra vires. A defender who can successfully attack an adjudicator's decision on a ground of the latter sort will be able to resist enforcement. The distinction, in my view, is between a decision that is unsound but valid, and a decision that is invalid because it was not one that the adjudicator had power to make. Since I would express the distinction in that way, I have reservations about the way in which the first of His Honour Judge Thornton's propositions, quoted in paragraph [6] above, is expressed. If it had said "the soundness of which is challenged" rather than "whose validity is challenged", I would have agreed with it. The other reservation that I would express relates to Dyson J's treatment of "procedural error" in Macob. I would not rule out the possibility that there may be a procedural error which produces the result that the adjudicator has made a decision that is beyond his jurisdiction.

So, a severe procedural error may be enough to make an adjudication decision unenforceable. These comments, and others like it, have thrown the enforceability of certain decisions into doubt. Bearing in mind the inevitably fast timetable for adjudication, the intention that it is cheap, and the adjudicators' wide discretion to determine how to investigate the dispute, what sought of procedural errors will invalidate the decision? Where one draws the line depends largely on considerations of natural justice.

Natural justice, human rights and the adjudication story so far
The Human Rights Act 1998 sets out various rights in accordance with which public authorities must act. Of particular importance is Article 6 of the Convention on Human Rights, which provides that:

In the determination of his civil rights … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly …

There were commentators in the legal and construction journals who were suggesting as long ago as the beginning of 1998 that the Human Rights Act 1998 would pose a threat to adjudication and its enforcement. In particular this right under Article 6 to a fair trial. It would seem that they were wrong.

Elanay Contracts Limited v The Vestry (2000) addressed this matter. In this case, Article 6 of the European Convention on Human Rights was raised in relation to the right to be afforded a reasonable opportunity to present one's case and have a fair hearing.

The Vestry was a ladies clothing shop. They had a dispute in one of their shops at the Braehead Shopping Centre in Glasgow. Elanay Contracts undertook the shopfitting work and when it came to concluding the final account Elanay found that it could not agree the variations with the Vestry. The Vestry in turn alleged that there were a number of defects in the works, which Elanay disputed.

Elanay commenced adjudication which it won and was awarded £64,000. The Vestry refused to pay and Elanay made an application for summary judgment. Of the three grounds challenging the application to enforce the most important was the Vestry's argument that the 35 day time limit within which the adjudicator had been required to complete the adjudication, including the time from service of the notice of adjudication, infringed the defendant's right under Article 6 of the European Convention on Human Rights to a reasonable opportunity to present its case and demonstrated an abject inequity of arms. The referring party could take as long as it liked to prepare its case, the responding party had a matter of weeks.

Of this, His Honour Judge Havery QC said:

The question is whether Article 6 applies to proceedings before an adjudicator. In the first place proceedings before an adjudicator are not in public whereas the procedure under Article 6 has to be in public … it seems to me that if Article 6 does apply to proceedings before an adjudicator, it is manifest that a coach and horses is driven through the whole of the Construction Act … in my judgment, Article 6 does not apply to the adjudicator's award or to proceedings before an adjudicator because although they are a decision or determination of a question of civil rights, they are not in any sense a final determination.

15. As envisaged by His Honour Judge Bowsher QC in Discain Project Services Limited v Opecprime Development Limited, TCC 11 April 2001.

16. Barr Limited v Law Mining Limited Outer House, Court Of Session, 15 June 2001.

Judge Bowsher reached the same conclusion on a different basis in Austin Hall Building Limited v Buckland Securities Limited (2001) ⁽¹⁷⁾.

Austin Hall, the claimants, were a building contractor. Buckland Securities, the defendant, were the employers and engaged Austin Hall to carry out building work for a job in East London. Austin Hall submitted its final account in draft. Agreement could not be reached on the account and at the end of last year Austin Hall commenced adjudication. They won an award for £81,000-odd with interest at 5% above base rate of the Bank of England.

The main issue with which Judge Bowsher QC was to deal was whether, in acting in accordance with the statutory Scheme for Construction Contracts (itself subordinate legislation) laid down by the Act (primary legislation), the adjudicator had acted incompatibly with the defendant's right to a fair and public hearing under Article 6 of the Convention. In particular the defendant complained that:

1. the statutory requirement that the adjudicator reach a decision in 28 days was manifestly unfair, since it did not allow the defendant sufficient time to prepare its case;
2. the defendant was not given a public hearing and the adjudicator's decision was not pronounced publicly.

Prior to considering Article 6, Judge Bowsher examined the terms of the Human Rights Act 1998 to see how and in what manner the Convention is made part of English law. He referred to section 1 of the Act, which indicates that Article 6 is one of the "Convention rights" in the Act. Section 2 requires the Court to take into account the jurisprudence of the Strasbourg Court. Section 3 was said to be particularly important to the facts of this case because:

(i) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights;
(ii) This section applies to primary legislation and subordinate legislation whenever enacted; it does not affect the validity, continuing operation or enforcement of any incompatible primary legislation.

The Judge referred to section 4 of the Human Rights Act, which gives the Court the power to make a declaration of incompatibility upon notice then given to the Crown pursuant to section 5 of the Act.

The Defendants sought such a declaration of incompatibility, but they had failed to give any such notice. Judge Bowsher QC made it plain that even if the necessary notices had been given, he would not consider making a declaration of incompatibility without evidence of the workings of adjudication in general and fuller argument on the law.

On the first question that he dealt with, namely "Did the Convention apply to adjudicators?" he answered that question by reference to section 6 of the Human Rights Act. He concluded that there was a short answer to the defendant's case which was that even assuming that the adjudicator is a public authority (on which he expressed some doubts) and that the Act applies Article 6 of the Convention to his conduct, almost the whole of his conduct complained of is covered by section 6(2) of the Act.

Under section 6(2), subsection 6(1) does not apply to an act if, as a result of one or more provisions of primary legislation, the authority could not have acted differently. In order to comply with the 28 day time limit provided by the statute, the adjudicator could not have acted differently in imposing the time limits that he set on the parties. Therefore since the adjudicator, Mr Linnett, was acting in accordance with primary legislation, the defendant could not pray in aid the Convention right or rights concerned in any legal proceedings under section 7(1)(b) of the Human Rights Act as a defence to application for enforcement. That was Judge Bowsher's short answer.

A point not covered by this answer is one made on the second day of the hearing that the defendant was not given a public hearing and that the judgment was not pronounced publicly.

17. Judgment date: 11 April 2001

In relation to whether an adjudicator is a public authority the Judge reviewed various European authorities of the European Court and the Commission regarding waiver of the right to a public hearing ⁽¹⁸⁾.

Applying the definition of tribunal in section 21 of the Human Rights Act in the light of the decisions to which he was referred he concluded that he did not regard an adjudicator under the Act as a person before whom legal proceedings may be brought. He said that legal proceedings result in a judgment or order that in itself can be enforced. That is not the case with an adjudicator. The language of the Act is that an adjudicator makes a decision. He does not make a judgment. Nor does he make an award as an arbitrator does though of course he can order his decision to be complied with. He highlighted the fact that the decision of an adjudicator, like the decision of a certifier, is not enforceable of itself. These decisions, like the decisions of a certifier, can be relied on as the basis of an application to the Court for judgment, but they are not themselves enforceable.

On balance, and in light of these considerations, Judge Bowsher QC concluded that an adjudicator exercising functions of the sort required by the Act is not a public authority and is not bound by the Human Rights Act not to act in a way incompatible with the Convention. Proceedings therefore before an adjudicator are not legal proceedings. They are a process designed to avoid the need for legal proceedings.

In addition, the Judge found that even if an adjudicator were a public authority for the purposes of the Act, the whole process necessary to the adjudicator's decision had to be considered to decide whether there had been a breach of Article 6. Considering this process as a whole, including the Court proceedings necessary to enforce the decision, he found that there had been a public hearing before the decision was enforced.

Finally, he went on to consider whether, assuming the adjudicator to have acted unlawfully and contrary to the Convention, the defendant could be considered a victim "a victim of the unlawful act". This was important because under section 7 of the Human Rights Act, only a "victim" can bring legal proceedings in respect of the infringement of his rights complained of. The defendants had not asked the adjudicator at the outset or at any time before his decision for a public hearing and public pronouncement of the decision and thus had not acted like a victim. Further, the defendant waived any right to a public or private hearing, if any existed, by failing to ask for it.

So an adjudicator's decision will be enforced regardless of its compatibility with the European Convention for Human Rights. It still remains to discuss the extent to which an adjudicator must act in accordance with natural justice.

18. Schuler-Zraggen v Switzerland [1993] 16 ECHHR 405

As Lord Denning said in the case of Kanda v Government of Malaya ⁽¹⁹⁾"The rules of natural justice can be put in two words impartiality and fairness". Those two words enshrine natural justice. There are no hard and fast conditions of the requirements of natural justice. This is apparent from a brief consideration of two decisions.
In Russell v Duke of Norfolk ⁽²⁰⁾ the Court of Appeal said:

There are, in my view, no words which are of universal application to every kind of enquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with and so forth; accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case.

19. [1962] AC 332

20. [1949] 1 All ER 190

Then in the case of Wiseman v Borneman ⁽²¹⁾ the House of Lords said:

Natural justice requires that the procedure before any Court which is acting judicially shall be fair in all the circumstances, and I would be sorry to see this fundamental principle degenerate into hard and fast rules.

The Courts recognise that the Scheme gives the adjudicators wide powers in determining how to come to their decision. They also recognize that the timetable under the Act does not permit the lengthy and detailed examination of the merits of the parties' cases, which can be expected in litigation. However, within these limitations, the adjudicator must act fairly.

21. [1971] AC 267

A relatively recent, and important case in applying these considerations is Discain Project Services Limited v Opecprime Development Limited ⁽²²⁾ in which His Honour Judge Bowsher QC considered the application of the rules of natural justice to adjudication. On the facts, he declined summarily to enforce the adjudicator's decision. He found an adjudicator had to conduct proceedings in accordance with the rules of natural justice, or as fairly as the limitations imposed by parliament allowed

Discain had been engaged by Opecprime for the design, manufacture and erection of structural steel balconies from a job at Harrow. A dispute over payment arose and Discain applied to the RICS to appoint an adjudicator and Roy Sutcliffe was appointed.

It was an adjudication under the Scheme. At the end of the adjudication Mr Sutcliffe ordered that Opecprime pay Discain a further £55,000. Opecprime refused to comply with the decision. Discain then commenced proceedings to enforce by way of summary judgment in the Technology and Construction Court. Opecprime defended the enforcement on the grounds of jurisdiction and natural justice. The jurisdiction points need not be gone into here: it is the matters that Opecprime described as breach of natural justice, and which Judge Bowsher characterised as amounting to a danger of bias, that we now concentrate on.

Opecprime's reasons for grievance were that Discain's representative had on three occasions during the adjudication telephoned Mr Sutcliffe and had conversations with him. During these conversations they had discussed material issues in the adjudication. Three faxes had been sent to Mr Sutcliffe each of which were copied to Opecprime, summarising those conversations and forwarding certain authorities to the adjudicator. Two of the faxes were sent immediately but the third was three days after the conversation took place.

The particular point which Discain's representative had discussed with Mr Sutcliffe was of considerable importance in the adjudication because Discain was challenging the validity of a section 111 withholding notice on the grounds that it had not been sent on Opecprime's headed notepaper but on that of another company in the group. Mr Sutcliffe ultimately found, in Discain's favour, that the notice was invalid as alleged.

When the case came before Judge Bowsher he made it clear that whilst he disagreed with Mr Sutcliffe's conclusion about the validity of the withholding notice he recognised that his mere disagreement with it was no reason not to enforce it, so long as he was content that it had been reached in a satisfactory manner.

In examining closely the means by which Mr Sutcliffe had reached his decision, Judge Bowsher acknowledged Judge Dyson's view in Macob that a breach of the rules of natural justice is in itself insufficient grounds to resist the enforcement but he went on to identify two types of breach of natural justice. On the one hand, there are mere procedural errors, which have no demonstrable effect on the outcome of the adjudication, such as the particular breach considered in Macob. On the other hand, there are more significant breaches of the rules of natural justice, as in this case, that obviously impinge on the decision.

In Judge Bowsher's opinion, the very nature of adjudication, in which there is no appeal from the adjudicator's decision on matters of fact or law, makes the strict regard for the rules of natural justice more, not less, important. Had the rules of natural justice been complied with in this case, he opined that Mr Sutcliffe might have come to a rather different decision.

Although the Judge made it clear that he was not criticising Mr Sutcliffe's conduct, he considered that what had happened was distasteful and in a special addendum to his judgment he said he could not bring himself to enforce the decision arrived at. The decision was not appealed.

The case did however go on to full trial when Judge Bowsher had the chance then to review the decision as well as receiving the benefit of the adjudicator's personal evidence. This did not result in him changing his mind from that he reached in August last year. He decided once again that the facts would lead a fair minded and informed observer, on an objective test, to conclude that there was a real possibility or a real danger of bias. He then turned to the question of whether such bias should prevent the decision from being enforced. He said,

On the face of the Act and the Scheme, therefore, the decision is still binding on the parties. However, just as the Court will decline to enforce contracts tainted by illegality, so I do not think it right that the Court should enforce a decision reached after substantial breach of the rules of natural justice. I stress that an unsuccessful party in a case of this sort must do more than merely assert a breach of the rules of natural justice to defeat the claim. Any breach proved must be substantial and relevant. I also repeat the words of Judge Humphrey Lloyd Q.C., "It is accepted that the adjudicator has to conduct the proceedings in accordance with the rules of natural justice or as fairly as the limitations imposed by Parliament permit". The qualification in the latter part of that sentence is important.

In my view, the adjudicator did not act in accordance with the rules of natural justice nor, in the words of Judge Humphrey Lloyd Q.C. did he conduct the proceedings "as fairly as the limitations imposed by Parliament permit". The limitations imposed by Parliament did not require the telephone conversations of which complaint is made.

This brings us to the next important case. Here a discussion of natural justice was interestingly side-stepped, so it probably does not take matters much further as far as natural justice goes. However, it does bring out another consideration as to the limits of enforceability of adjudicators' decisions.

The case is Woods Hardwick Limited v Chiltern Air Conditioning Limited (2000). Woods Hardwick was an architect and engineer. Its client, Chiltern, was a developer and main contractor. They ran into a dispute with each other on a job at Bedford over the fees claimed by Woods Hardwick and certain additional work. It went to adjudication. As the agreement for architectural services was evidence merely by an exchange of letters, without an adjudication clause, thus the Scheme for Construction Contracts applied.

The job in Bedford had gone pear shaped. Chiltern blamed the architect, the architect blamed Chiltern. A Mr Yiannis Pareas was appointed adjudicator. The adjudicator had a strained relationship with Chiltern's representative. According to the adjudicator, this representative was confrontational, abusive, inexperienced and made long speeches that were irrelevant. The adjudicator reached his decision and ordered Chiltern to pay the architect's fees.

The case went to enforcement during which Chiltern attacked the adjudicator's decision on the basis that he had prevented it from presenting its case, took evidence from the architect and did not report it to Chiltern, took evidence from two subcontractors and did not report it to either, took legal advice and did not report it and helped the architect to enforce the award by making a statement which showed that he was partisan and partial.

Chiltern's principal line of attack was to claim that the adjudicator's procedure was out of order. Bias or gross unfairness was its tack in trying to persuade His Honour Judge Thornton QC in the Technology and Construction Court to refuse to enforce the decision. Judge Thornton refused to enforce the decision because he concluded that the adjudicator had acted in a way, which appeared to the Court not to be impartial whatever the attitudes of the parties to the adjudication proceedings.

However, this was not a decision based on considerations of natural justice, but on the Scheme. Indeed the Judge expressly avoided a consideration of natural justice saying that he "need not consider these difficult matters in this judgment."

The adjudicator was found to have breached the provisions of the Scheme in three respects. He failed to make available to one of the parties, information obtained from the other and third parties. Secondly he obtained legal advice without notifying the parties of his intention. Thirdly he submitted a witness statement to the enforcement proceedings, which left the impression that he was not impartial. Judge Thornton said:

In reaching these findings, I am conscious of the nature of adjudication proceedings. They are inevitably rushed in their outcome and must be carried out by an adjudicator taking summary and inquisitorial steps which he has himself devised. No party is entitled to expect an oral hearing, let alone a third oral hearing as Chiltern were submitting was appropriate. However, the adjudicator must not make up his mind to shut up further arguments from a party merely because he believes that any comments he receives on newly acquired and material information from other sources, particularly from the other party, will not affect his view as to that party's position. He has a statutory duty to make available to both parties any information he has received which he is to take into account in reaching his decision. It must be remembered that the defendant, as in this case, is an unwilling party to the adjudication. This makes it important that the basic statutory requirements of fairness towards all parties are complied with.

I am also conscious that the adjudicator attempted to act in an impartial manner and showed no conscious bias or hostility to Chiltern. However, the statutory requirement to act impartially requires the adjudicator to act in a way that does not lead to a perception of partiality by one party, which might objectively be held by that party. In this case, the adjudicator led the parties to believe that there would be no need for a hearing. Such a view would only be tenable if the adjudicator took other steps, by way of written communications for example, to inform both parties of any relevant additional information he subsequently obtained to enable them to comment upon it. Having left the parties with the impression that he did, he acted in a manner which could readily be perceived to be partial in approaching one side without informing the other, and seeking much additional information from third parties and in them taking adverse steps against the party left in ignorance of these steps. These difficulties were then compounded by the adjudicator voluntarily providing a witness statement which seeks to put forward Woods Hardwick's case in favour of enforcement and which elaborates on the reasons for making adverse findings against Chiltern.

It will be seen from the decisions in Macob, Discain and Woods Hardwick that the judgments are on different bases. These are differences of approach. In Woods, the adjudication decision was not enforced because of breaches of the Scheme. As we have seen, issues of natural justice were not expressly considered. In Discain again the award was made under the Scheme and not enforced but this time the judge held that as the award was reached in breach of natural justice, it should not be enforced.

It is not fair, however, to say that the decisions are in conflict with one another. It would appear that an adjudicator must comply with the Scheme, and (as far as he can within the structure of the Scheme) comply with natural justice. It should come as no surprise that judges can take either route in reaching decisions. Many of the provisions of the Scheme, as they apply to the conduct of adjudications, are matters of natural justice. For example, section 17 which provides:

The adjudicator shall consider any relevant information submitted to him by any of the parties to the dispute and shall make available to them any information to be taken into account in reaching his decision.

If an adjudicator failed to do this, he would often be acting contrary to natural justice as well as contrary to the Scheme. A Court could therefore refuse to enforce his decision on either ground.

The lesson from these decisions that adjudicators must first and foremost abide by the rules governing the conduct of the adjudication process. Within the constraints of the timetable for adjudication, and his wide discretion for determining an appropriate procedure, an adjudicator must also act fairly and impartially. If he does not do so, the Courts may not enforce his decision.

Lateral solutions and the petition route

As the saying goes, there is more than one way to skin a cat and enforcement of judgments; arbitral awards and adjudicators' decisions are no exception. The reasons why clients resort to lawyers should invariably be for the fact that the do not always think in linear fashion when they try to solve their clients' problems. If formal action must be pursued to judgment, award or decision, and that still does not produce the remedy the claiming party is seeking then it is time to further pause for thought. The habitual knee jerk reaction when a claimant secures a result from an adjudication is to look to enforcement by way of summary judgment in the Courts. There are other alternatives. One of the quickest ways of taking the wind out of the sails of a opponent who failed to satisfy a monetary adjudicator's decision is by presenting a petition in the company's Court for winding up or bankruptcy as appropriate. It has never ceased to amaze me how few lawyers have turned to this route of enforcement. Whilst it is extremely aggressive it is certainly not irregular since an adjudicator's decision is enforceable and a binding determination of a dispute pro tem. It took however the decision in Re A Company (Number 1299 of 2000) to get the legal community to recognise it as a possible route to enforcement. In this case Mr David Donaldson QC sitting as a Deputy High Court Judge in the Chancery Division concluded that absent a withholding notice pursuant to section 111 of the HGCR Act a contractor had an undisputed debt for the amount demanded in an application for payment! Consequently, that debt may form the basis of the statutory demand to justify a petition to wind up the debtor. The Court refused to restrain the petition on the ground alleged by the Company that the claim was disputed and similarly on the ground that there was a cross claim. Usually petitions to wind up companies where there are valid cross claims result in Companies Court preventing a petition from proceeding to a winding up order. This was most recently highlighted in a case called Seawind Tankers Corporation v Bayoil SA [1999] 1 All ER 374 where the Court of Appeal set out the circumstances in which a petition should be dismissed where a debtor has a cross claim larger in amount than the petitioning creditor. I am not aware of the extent to which this decision was argued in the Re A Company decision referred to above but clearly there has been a warning shot made by the Chancery Division that winding up petitions are certainly a means for enforcing adjudicators' decisions. Besides the rather large fee for issuing a winding up petition the actual legal costs involved in the process are rather modest and the process very expeditious.

Apart from making an application for summary judgment, there are three main alternatives to consider in enforcing a decision.

1. A petition for insolvency (which I have briefly outlined and address more fully below)
2. A mandatory injunction; and
3. Agreement.

The petition route

Section 122(f) of the 1986 Insolvency Act provides that you can apply to wind a company up if it is "unable to pay its debts." Under section 123, a company is treated as being unable to pay its debts if:

a creditor … to whom the company is indebted in a sum exceeding £750 then due has served on the company, by leaving it at the company's registered office, a written demand (in the prescribed form) requiring the company to pay the sum so due and the company has for 3 weeks thereafter neglected to pay the sum or to secure or compound for it to the reasonable satisfaction of the creditor.

22. [2000] CILL 1676

More often than not the presentation of the winding up petition is enough to make the losing party pay, not least because once the petition is advertised ⁽²³⁾ it has the effect of declaring to the world at large that anyone who has money owing may effectively jump on the bandwagon and seek to be substituted as the petitioning creditor or at least joined with it. So the helter skelter may gain increasing force. However I must not over egg the winding up route as there is still an inclination on the part of the Courts to shun attempts to use the company Courts as a debt collecting avenue.

From a procedural point of view whilst most of petitions are predicated on the service of a Statutory Demand, there is no legal requirement to evidence the debt if there is otherwise clear evidence of the existence of the debt eg a decision published by an arbitrator or an adjudicator or a judgment of the Court ⁽²⁴⁾. A caution nevertheless needs to be exercised when contemplating the petition route and the client advised appropriately. This is because, as I have indicated above, the Court may on the basis of Bayoil countermand the process ⁽²⁵⁾.

Injunction

I mentioned lateral solutions earlier and one which I am not aware has actually been pursued as yet, at least a propos adjudicator's decisions, is enforcement of adjudicator's decision by way of a mandatory injunction. The Courts have power to require a defendant to perform an act by what is known as a mandatory injunction and failure to comply may result in contempt of Court ⁽²⁶⁾. A party in contempt of Court may be committed to prison!

It is of course not usually appropriate to apply for a mandatory injunction requiring a party to pay money awarded by an adjudicator. The reason is relatively simple. Someone who fails to pay following a Court judgment cannot, at least without more ado, be sent to prison. Someone who fails to comply with a mandatory injunction can be. The Courts would be slow and need quite some persuasion that a party who does not comply with an adjudicator's decision should be in a worse position than someone who does not comply with a Court order to pay money. However it is certainly arguable, particularly where an adjudicator's decision relates not to the payment of money but in relation to for example a declaration that work is not compliant and that a party should carry out or perform certain work e.g. to comply with statutory requirements. It is arguable that in such circumstances an injunction might be appropriate but no decisions exist as yet to show this path has been tested.

Oral examination

Another rather effective means of gaining information from those that control the company or business is by Oral Examination. It is surprising how little it is used as a procedure. It does however require judgment of the Court before it can be exercised and in this regard it will of course be available following any conventional judgment arising out of the Court action, the enforcement of an arbitral award under section 66 and of course following a successful summary judgment application following an adjudicator's decision. It is surprising what can be revealed!

Basically, if the debtor does not pay after the judgment has been entered the creditor can apply without notice for a notice bringing that debtor before the Court in order to examine him as to his means. If a judgment creditor is a company then the order can be made against an officer of the company, be it a company secretary, director, etc.

Such applications are generally best made after you have undertaken a significant amount of intelligence and searching against the debtor. Employing enquiry agents to carry out bin raids is certainly not unheard of in order to lawfully examine the paperwork thrown out by that debtor to see whether it might produce a clearer picture of its financial position.

Once you proceed for an oral examination the order provides for the production of all relevant books or documents and evidence in support.

The costs involved are modest. You need to pay conduct money, i.e. the price of a rail ticket to the Court and back for the party called.

Procedurally in the High Court the examination is held at the most economical Court eg the High Court office or County Court office nearest to the debtor's place of residence. In County Court cases, the examination must be conducted for the district in which the debtor resides or carries on business. In the High Court the order must be served personally.

In both Courts, if the respondent fails to attend, it is possible to obtain an order for his committal to prison. Something I have done twice, but not in relation to adjudication enforcement. On both occasions it pulled a result.

23. Which it can be no less than seven days after it is presented.

24. See Taylor's Industrial Flooring Limited v M&H Plant Hire (Manchester) Limited [1990] BCLC 216.

25. George Parke v The Fenton Gretton Partnership, HHJ Boggis QC 2 August 2000

26. See Contempt of Court Act 1981, Section 14

The hearing is not only intended to be an examination but a cross-examination of the severest kind ⁽²⁷⁾. The examination can produce some very interesting information, which is recorded by an officer of the Court and may be used in evidence.

For example you may ask questions of the managing director as to the mistress he supports, as to the car he drives, whether it is subject to finance (having previously checked out that it is not!) and generally proceed to if necessary reduce that witness to tears, even if they are of the crocodile variety.

Fi Fa

Other conventional methods of enforcement once you have a judgment are the processes of appropriating assets of the judgment debtor, eg by writ of fieri facias (Fi Fa) in the High Court, or a warrant of execution as it is termed in the County Court. A writ or Fi Fa in terms of a heavy handed approach has rather more fear factor than sending in the bailiffs. Then there is garnishee proceedings in which if the judgment debtor is himself the creditor of another, it is possible to obtain an order that his debtor shall pay the judgment creditor. So for example, if you have monies owing to you from the main contractor, and you know that main contractor is due money from the employer, you can garnishee the employer so that the next interim payment due to the main contractor the money is snaffled and goes direct to the subcontractor creditor.

Charging order

There is also a procedure of obtaining a Charging Order on land which provides the judgment creditor with the equivalent of a mortgage over the land specified in the order. Thus, subject to any prior mortgages and charges affecting that land, the judgment creditor becomes a secured creditor. The charging order does not affect the accrual of any judgment interest payable on High Court judgments or County Court judgments on which interest is payable. If the judgment debt remains unpaid, the judgment creditor can go so far as apply for an order for the sale of the land charged so that the judgment may be satisfied out of the proceeds of sale remaining after discharge of any prior mortgage or charge. Again it is quite unusual as a means of enforcement because it is relatively long winded but it can be useful and the fact that charging orders secure all judgment interest due and accruing due, including interest accruing more than six years before the eventual sale of the property is useful to know.

Agreement/Mediation

Another factor to be aware of whilst on the topic of lateral thinking is the steps which a losing party to an adjudication might take itself, whether the adjudicator's decision has actually started to be enforced or not. It must be remembered that the obligation to comply with an adjudicator's decision as opposed to a judgment is a contractual matter. It may be a contractual agreement forced upon the parties by the HGCR Act, but it is still a contract. Parties can alter their contracts of course by agreement one way the smile might be wiped from a winners face is by promptly starting formal Court proceedings to re-argue the entire dispute or serve notice of arbitration, assuming there is a binding arbitration agreement. This can very often serve to water down the effects of perhaps an over generous adjudicator's decision. Winning parties often realise that they have done rather better than they should have done and these types of tactics can downsize their expectations. Indeed I have known winning parties who know that they will ultimately lose agree to go into mediation to sort out a dispute knowing that once the big guns of litigation or arbitration start to swing round they are going to be walking backwards rather fast.

Is it only a temporal solution or an end in itself?

A final award or a judgment of the Court is generally the end of a formal dispute subject to the limited rights of appeal under each of those processes. However an adjudication under the HGCR Act is only binding until the dispute is arbitrated or litigated, or if the parties agree to treat it as binding.

27. The Republic of Costa Rica v Stronsberg [1880] 16 CH.D8

Similarly, in deciding that the Human Rights Act does not apply to adjudication His Honour Judge Bowsher Q.C. remarked that "proceedings before an adjudicator are not legal proceedings. They are a process designed to avoid the need for legal proceedings."⁽²⁸⁾

In this sense, Adjudication is a temporal solution. The dispute is not resolved by adjudication unless the parties decide to treat the decision as a final determination.

However, they often do. Very few matters adjudicated actually end up in litigation or arbitration. In practice, therefore, adjudication can be expected finally to resolve a dispute, or at least to facilitate its resolution in making agreement more likely.

Summary

I have in this paper sought to give you an introduction into the tactics and strategy involved in the resolution of building disputes emphasising the practical aspects and the numerous options open to try and swing a case in one's client's favour. I hope to have equipped you with at least some information of use to effect best practice in your management of such disputes.

28. Austin Hall Building Limited v Buckland Securities Limited, TCC, 11 April 2001