Hillview Industrial Developments (UK) Ltd v Botes Building Ltd [2006] EWHC 1365 (TCC)

This summary was provided by CMS Cameron McKenna LLP.

For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes

This case constitutes a reminder that there are only very limited grounds upon which a defendant may successfully persuade a court to refuse to order summary enforcement of an adjudicator’s decision.  A defendant is not entitled to withhold payment ordered in an adjudication on the grounds of his anticipated recovery in a future adjudication/court proceedings based on different issues. 

Judge Toulmin CMG QC – Queen’s Bench Division, Technology and Construction Court

This was an application by Hillview for summary judgment to enforce an adjudication decision against Botes.  Botes accepted that the adjudicator’s decision was valid, but invited the court to hold that there were compelling circumstances why this case should not be dealt with by summary judgment.  In particular, Botes was about to issue legal proceedings in relation to a claim on the final account and final statement.  If Botes were required to pay the sum in the adjudicator’s decision, a substantial part of it would only have to be repaid to Botes a short time after.

The judge noted that there were only very limited grounds for refusing to enforce immediately an adjudicator’s award in relation to a dispute arising under the Housing Grants Construction and Regeneration Act 1996.  The purpose of the 1996 Act is to provide a means of resolving construction disputes promptly. 

Where the parties to a construction contract engage in successive adjudications/court proceedings, at the end of each adjudication the losing party must comply with the adjudicator’s decision.  He cannot withhold payment on the grounds of his anticipated recovery in a future adjudication/court proceedings based on different issues.

The court could find no possible justification for holding that there was a compelling reason why the case should be disposed of at trial, rather than by way of summary judgment, or adjourned until Botes had filed its claim, so that both claims could be heard together.

It may be noted that this case concerned the CIC’s adjudication rules, which were subsequently held to be invalid (Epping Electrical Company v Briggs & Forester (Plumbing Services) Ltd [2007]).

This summary was provided by CMS Cameron McKenna LLP.

For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes

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