Welcome to the December 2020 issue of the DAC Beachcroft Construction Risks NewsletterThere is a clear theme in this quarter’s newsletter - enforcement of an adjudicator’s decision. This is a highly topical issue and has featured in most of the notable decisions made in the Technology and Construction Court over the course of the last few months.
It is not currently clear why there has been a spate of adjudication enforcements, but given the economic circumstances following Covid/Brexit and general downturn – there may at least be some reasons.We review the first cases applying the Supreme Court’s decision in Bresco v Lonsdale and what security will be required from Insolvency Practitioners looking to enforce an adjudicator’s decision. We also look at some cases using novel arguments to try and resist enforcement of an adjudicator’s decision, including the ‘correction’ principle and manifest injustice.
Finally, we report on the latest decision considering severability of an adjudicator’s decision and that the approach of the courts will be to try and enforce those parts of an adjudicator’s decision which can be separated from parts of the decision which are unenforceable.
Applying Bresco: Security at the Forefront
As reported in our August Construction Risks Newsletter, the Supreme Court handed down its decision in Bresco Electrical Services Ltd (in Liquidation) v Michael J Lonsdale [2020] UKSC 25 on 17 June 2020.
Dickie & Moore Ltd v McLeish & Others [2020] CSIH 38: The Trilogy
This case, although from Scotland provides a useful review of the law on severance in England & Wales.
The ‘correction’ principle cannot be used to resist enforcement of an adjudicator’s decision
The case of J & B Hopkins Ltd v Trant Engineering Ltd [2020] EWHC 1305 (TCC) is another interesting decision which demonstrates the Court’s robust attitude to enforcement of adjudicator’s decisions.
A warning to the users of Letters of Intent
In an effort to preserve the integrity and purpose of the adjudication process as an expedient means of resolving payment disputes, it is rarely seen that the Courts will find grounds not to enforce an award made by an adjudicator based on arguments concerning jurisdiction.
Successful use of manifest injustice to resist enforcement of an adjudicator’s decision
This is a useful case, which illustrates, potentially a further way to resist enforcement.
