Adjudication Enforcement

Adjudication Enforcements by Silver Shemmings

As Experts in Construction Law, Silver Shemmings LLP have been involved in many adjudication enforcement proceedings. Our clients have benefited from our detailed practical knowledge of the Adjudication process and we have considerable experience in acting in the Technology & Construction Court (TCC).

Having won your adjudication you may well be surprised when the other side still refuses to pay as directed by the Adjudicator. At Silver Shemmings we can assist by reviewing the defendant’s position and advising on the potential risks and commercial issues in taking forward the enforcement and, when appropriate, represent and advise our clients through the adjudication enforcement process.

As an example Silver Shemmings LLP were involved in the recently reported case of Harris Calnan Construction Company Limited - vs - Ridgewood (Kensington) Limited in the successful recovery of monies due from Ridgewood to Harris Calnan, following an adjudication.

In this case, the Defendant raised a number of jurisdictional issues which the Judge considered in detail. The Judge held that the issues raised by the Defendant in the hearing had been raised also before the adjudicator who had properly considered them and come to a decision.

Challenging an Adjudicator’s decision

Adjudication is recognised as a form of “rough and ready” justice and there are occasions where the decisions reached, or the manner is which they are reached, are such that you feel compelled to challenge them.

Challenging an adjudication decision can only be successful for specific technical reasons. Simply having received what appears to be the “wrong decision” is not sufficient grounds to challenge.

At Silver Shemmings we can assist by reviewing the adjudication process for you and using our expertise in Construction Law, the Construction Act and the adjudication enforcement process to advise you on the most commercially sensible route forward.

For further information on either taking steps to enforce an adjudicator’s decision or should you wish to challenge that decision then please contact Sarah Shemmings of Silver Shemmings LLP on office@shemmingsllp.co.uk.

Some further background information on Adjudication Enforcement that you may find helpful

1. Adjudication as part of the Housing Grants and Regeneration Act Adjudication has been part of the construction “scene” for ten years. It was introduced by the Housing Grants Construction and Regeneration Act 1996 (“A Construction Act”) as a way to resolve disputes on site with the minimum of delay. Adjudication is a short process – a decision has to be given within 28 days (or 42 days if an extension of time is agreed). Because of the short time scale it was recognised that the decisions may not always be accurate, but as a form of “rough and ready justice”, the system has worked well. An adjudicator’s decision is final until the contract comes to an end, whether it be by way of negotiated settlement, litigation or arbitration. However, as has been shown by the case law over the years, not all of the adjudicator’s decisions have been accepted or paid. Whilst an adjudicator has quite sweeping powers of investigation, he has to act within certain defined limits, and if he exceeds these limits then his decision could be found to be unenforceable. An adjudicator has to act reasonably, within the jurisdiction which has been given to him, and in accordance with the rules of natural justice. If he does not keep to these three laws then the courts will refuse to enforce that decision.
   
   
2. Court Rules on Adjudication Enforcement The Court Rules now state that the way to enforce a decision is to apply for summary judgment. To do this it is necessary to issue a claim form and an application for summary judgment in the Technology & Construction Court (TCC). The courts aim to provide a hearing date for the summary judgment hearing within 28 days of the issue of the claim form. This gives a tight time scale for the Defendant to serve its evidence in response, setting out his reasons for non-payment and for the Claimant to respond prior to the hearing date. However at the hearing, provided the Judge is satisfied that the adjudicator’s decision is valid and that the Claimant is entitled to enforce that decision, then Judgment will be given in the Claimant’s favour, together with an award of costs.