Able Construction (UK) Ltd v Forest Property Development Ltd [2009] EWHC 159

This summary was provided by CMS Cameron McKenna LLP.

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It is not generally acceptable for parties to seek to avoid enforcement of an adjudicator’s decision by raising an issue which requires oral evidence in the hope that the enforcement proceedings will then have to be adjourned.  The Court awarded the Claimant interest at 8% over base rate and costs on an indemnity basis.

The Hon. Mr Justice Akenhead, Queen’s Bench Division, Technology and Construction Court


Forest engaged Able to carry out a residential development in Middlesex.  A dispute was referred to an Adjudicator who decided on 24 September 2008 that Able was entitled to £130,927.17 plus VAT plus interest, approximately £160,000 in total. 

On 9 October the parties agreed a written Settlement Agreement providing for payment of £150,000 by Forest in four instalments in return for Able restraining itself from taking further legal enforcement action.  The Settlement Agreement provided that if Forest did not pay, Able could enforce the Adjudicator’s decision.  Forest paid the first instalment on time, but did not pay the second and, on 7 January 2009, Able sought summary judgment in respect of the £110,000 outstanding under the Settlement Agreement.

Forest wrote to the court asking for an adjournment of the hearing.  Able opposed this and the Court advised that it would hear Forest’s application at the start of the hearing.  For unknown reasons, Forest did not attend Court and Coulson J decided there was no basis for an adjournment.


The Court noted that, as there was no question of jurisdictional error or breach of natural justice, on the face of it this was an adjudicator’s decision which should be enforced.  There were, however, two possible issues going to enforcement:

  • Whether the fact that the claim was made under the Settlement Agreement (which was not a “construction contract” within the meaning of the Construction Act) had any effect on Able’s right to pursue the claim for summary judgment; and
  • The effect of an apparent matter in dispute as to whether the parties had agreed that Forest would pay £10,000 in January and the remainder of the debt in instalments of £3,000/month.


The Court held that in this case the Adjudicator had been appointed under the construction contract and not the subsequent Settlement Agreement.  The Settlement Agreement made plain that, if Forest did not pay in accordance with its terms, Able were entitled to enforce the Adjudicator's decision.  That essentially was what Able were now seeking to do.  As a concession to Forest, Able were restricting their claim to the sum due under the Settlement Agreement, as opposed to the slightly larger net sum due under the Adjudicator's decision.  But that did not affect the validity of the underlying adjudicator's decision.  The fact that the claim for summary judgment was brought in consequence of breach of the Settlement Agreement made no difference to the general approach to enforcement of adjudicator’s decisions adopted by the courts.

As to the alleged matter in dispute, it was common ground that the parties had met on 15 January, that Forest had paid Able a further £10,000 and that Forest had raised the possibility of paying the rest in monthly instalments of £3,000.  Able claimed it had refused this possibility outright; Forest claimed Able had agreed.  On the face of the documents at least, there was therefore a dispute which could only be resolved by oral evidence.  Coulson J held that it was not generally acceptable for a party seeking to avoid an adjudicator’s decision to raise an issue requiring oral evidence in the hope that the enforcement proceedings would then have to be adjourned; in enforcement proceedings of this kind, the court’s procedures should be flexible enough to allow a point like this to be addressed straightaway.  The Court therefore heard Able’s oral evidence on the matter at the hearing.  Forest did not attend and thus could not give any evidence, but the Court was satisfied that any resulting prejudice to Forest was solely its own responsibility.  Considering Able’s evidence, the Court reached the view that there had been no agreement that Forest would pay the balance of the settlement sum at £3,000 a month. 

Able was therefore entitled to summary judgment for the unpaid balance due under the Settlement Agreement and pursuant to the original Adjudicator’s decision.  In addition the Court awarded Able:

  • interest in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 at a rate of 8% over base; and
  • costs on an indemnity basis given that Forest had no defence to the claim and had put Able to extensive costs in order to recover sums that Forest had expressly agreed to pay.

This summary was provided by CMS Cameron McKenna LLP.

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