Mead General Building v Dartmoor Properties [2009] EWHC 200

This summary was provided by CMS Cameron McKenna LLP.

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In this case the court held that (a) where an adjudicator had not been appointed in accordance with the provisions of the adjudication clause in the contract, he lacked jurisdiction and his award was unenforceable; (b) where the Scheme for Construction Contracts applied, there could be two adjudications on the same issue at the same time provided that no decision had been reached in either adjudication.

Technology and Construction Court, Mr Justice Akenhead


Dartmoor engaged Mead to carry out a £1.6m development in Devon.  Mead commenced an adjudication in which it was awarded about £350,000, and sought summary judgment under CPR Part 24 to enforce the Adjudicator’s decision.  Dartmoor raised neither jurisdictional nor natural justice challenges, but argued that the Adjudicator had decided the claim incorrectly and that Dartmoor were planning to commence arbitration proceedings against Mead (though none had yet been commenced).  Dartmoor also raised the point that Mead was subject to a Company Voluntary Arrangement (“CVA”), which Dartmoor argued was evidence of Mead’s insolvency or likely inability to repay the judgment sum in any subsequent substantive proceedings. For that reason, Dartmoor argued, Mead was not entitled to judgment.


  • whether judgment should be entered in favour of Mead
  • whether there should be a stay of execution in respect of any such judgment


The Court restated the well-known position that the Court will enforce an adjudicator’s decision, regardless of errors in fact or in law, unless the adjudicator has decided the wrong question or materially breached the rules of natural justice.  As neither of these had been raised, Dartmoor’s complaints regarding the correctness of the Adjudicator’s decision were no defence to Mead’s enforcement claim.  Furthermore, adjudication enforcement proceedings will not usually be stayed pending the outcome of subsequent arbitration or litigation, even if that arbitration or litigation has in fact been commenced.  Enforcement proceedings will certainly not be stayed merely because the paying party intends, at some point in the future, to commence arbitration or litigation.

Even if the CVA were relevant as argued by Dartmoor, the Court further held that this could not prevent judgment being entered in Mead’s favour.  It was, however, relevant to the question whether a stay of execution in respect of that judgment should be granted.  Although no formal application had been made, the Court considered this question.

The Court summarised existing principles on the interaction of adjudication enforcement and a stay of execution, namely that when exercising its discretion to award a stay the Court should bear in mind that adjudication is intended to be quick and temporary and that successful parties should not generally be kept out of their money.  The probable inability of the claimant to repay the judgment sum at the end of a substantive trial or arbitration hearing may make it appropriate to grant a stay.  Where the claimant is insolvent, a stay will usually be granted.  However, probable inability to repay will not usually justify a stay if the claimant’s financial position is the same as it was when the relevant contract was entered into, or is due wholly or largely to the defendant’s failure to pay the sums awarded in the adjudication.

Noting that there was no previous authority specifically dealing with whether a claimant the subject of a CVA could avoid a stay of execution, the Court considered that a CVA was a relevant factor to take into account, but did not of itself mean a court should infer that the claimant would be unable to repay any judgment sum such that a stay should be granted: the circumstances of both the CVA and the claimant’s current trading position should be taken into account, including whether the claimant’s financial position/CVA were due to the defendant’s failure to pay the sums awarded in the adjudication. 

In the present case the Court found that the CVA had largely come about as a result of Dartmoor’s failure to pay Mead the sums claimed throughout the project.  Further, there was evidence suggesting that Mead was continuing to trade successfully as permitted by the CVA and with the support of its creditors.  In particular, the supervisor of the CVA had provided independent evidence that he believed that Mead could trade their way out of their difficulties.  Accordingly the Court considered that there was no justification in the present case to order a stay, and enforced the adjudication award, with interest and costs.

In deciding not to grant indemnity costs, the Court made an interesting aside that Mead had produced more information in the enforcement proceedings than necessary, given that neither jurisdiction nor natural justice arguments were raised.  In such cases, the Court felt that only the adjudication provisions and adjudicator’s decision (and in this particular case, the material relevant to the CVA) were required.

This summary was provided by CMS Cameron McKenna LLP.

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