How do I Enforce an Adjudicator’s Decision?
Introduction
Decisions by Adjudicators are interim-binding. This means that they must be complied with, unless and until the dispute is heard (and resolved) in court or arbitration.
But what if the losing party ignores the Adjudicator’s decision? What can the winning party do?
The good news (for the winning party) is that the courts in England and Wales have developed a special, fast-track, procedure that allows the winning party to go to court and obtain a judgment in its favour on the back of the Adjudicator’s decision, without having to go through the process of proving its case to the court.
In this post, Hamshaw gives a brief overview of what that process requires.
Apply to the Court
To enforce an Adjudicator’s decision, the winning party must make an application to the court.
The winning party, who will become the claimant, should make the application to the Technology and Construction Court (regardless of the value of the Adjudicator’s decision).
The court generally won’t interfere with the Adjudicator’s decision, unless it can be proven that the Adjudicator lacked jurisdiction or that there was a serious breach of natural justice.
Section 9 of the TCC Guide outlines the process for enforcement.
Documents Required
The claimant needs to prepare and submit to the TCC the following documents:
Claim Form: this should summarise the outcome of the Adjudicator’s decision, and state the relief sought.
Particulars of Claim: the particulars of claim should provide the details supporting the application.
Notice of Application: this should be in Form N244 and include a request for an abridgement of time, meaning a shortened period for the defendant to respond.
Witness Statement: a witness statement must support the claim form and application, providing evidence of the Adjudicator’s decision and the circumstances that justify enforcement. The decision itself should be provided as an exhibit to the statement.
These documents should each have the following wording written on their face: "paper without notice adjudication enforcement claim and application for the urgent attention of a TCC judge."
The Court’s Process
Once the TCC receives the application, a Judge typically reviews the documents within three working days.
The Judge will issue directions (i.e. steps that the parties must take, and deadlines by which they must be taken), which will usually include setting deadlines for the defendant’s acknowledgment of service, submission of evidence, and a hearing date.
The hearing is usually scheduled within six to eight weeks of the judge’s directions. Most hearings last less than half a day.
If the defendant ignores or refuses to comply with the directions, the court might enter judgment in default or might allow the claimant to bring the hearing forward for a quicker resolution.
At least two working days before the hearing, the parties must send an agreed bundle of documents to the court for use at the hearing. For a normal hearing (which will last less than half a day) the lawyers must exchange (and send to the court) skeleton arguments at least one working day before the hearing.
During the hearing, the Judge will decide whether to enforce the Adjudicator’s decision. The court may issue an immediate verbal judgment (also referred to as an ex tempore judgment) or it might reserve judgment to be prepared in writing and provided to the parties at a later date.
Conclusion
In summary, enforcing an Adjudicator’s decision in the TCC is a well-trodden path, involving a structured process governed by the CPR and carried out in line with the TCC Guide. It typically involves applying for summary judgment, submitting key documents to the court, and following specific timelines set by the court.
The TCC is generally supportive of Adjudication, and so will normally enforce a decision unless it is clear that there are jurisdictional issues, or natural justice violations.
If you need to enforce an Adjudicator’s decision, or if you have lost an Adjudication and need to quickly understand your options for resisting an application for enforcement, contact Hamshaw today. We may be in a position to offer a fixed fee for Adjudication enforcement work.