Holmes & Hills secures TCC adjudication enforcement for Westgreen Construction Limited

Holmes & Hills has acted for Westgreen Construction Limited in successful Technology and Construction Court proceedings to enforce an adjudicator’s decision for £650,000, plus VAT, the adjudicator’s fees and interest. Holmes & Hills instructed Mek Mesfin of 4 Pump Court to act on Westgreen’s behalf.

In Westgreen Construction Ltd v Kiryukhina, Mrs Justice O’Farrell DBE granted summary judgment enforcing the adjudicator’s decision and rejected the defendant’s attempts to resist enforcement on jurisdictional and natural justice grounds. The Court also refused a stay of enforcement and awarded Westgreen its costs on the indemnity basis.

Background to the dispute

The dispute concerned two advance payments totalling £650,000 made under an amended JCT Standard Building Contract without Quantities 2016 for construction and refurbishment works to a residential property in St John’s Wood. Westgreen argued that the advance payments had been wrongly omitted from Interim Certificate 25 before the contractual conditions for reimbursement had been met.

The adjudicator agreed with Westgreen and decided that the amount properly due was £733,062.40 excluding VAT. The defendant paid only £83,062.40 and did not pay the balance, leading Westgreen to issue enforcement proceedings in the TCC.

The TCC’s robust approach

The judgment is a useful reminder that the TCC will usually enforce adjudicators’ decisions promptly, even where the losing party alleges errors of law, fact or procedure. The Court reaffirmed the principles in Carillion v Devonport Royal Dockyard: technical defences to enforcement are examined with scepticism, and only plain jurisdictional errors or serious breaches of natural justice will prevent enforcement.

Mrs Justice O’Farrell held that the adjudicator had decided the dispute referred to him, namely whether the £650,000 advance payment sum had been wrongly omitted from Interim Certificate 25. The adjudicator was entitled to consider the contract terms, the parties’ submissions, earlier interim certificates and the evidence relied on by both sides in resolving that issue.

Challenges rejected

The defendant’s jurisdictional challenge failed. The Court found that the adjudicator had not decided a different dispute; he had determined the dispute referred by reference to the arguments and evidence before him.

The natural justice challenge also failed. The defendant argued that the adjudicator had reached his decision on a basis not properly put to the parties, including by considering clause 4.7 of the contract and points made in Westgreen’s Reply. Mrs Justice O’Farrell rejected that argument. The parties had been given the opportunity to make submissions on the relevant contractual provisions, the adjudicator did not award damages for breach of clause 4.7, and that issue did not form part of the operative decision. The Court also rejected the suggestion that Westgreen had advanced a new case in its Reply, finding that the Reply responded to matters raised in the defendant’s Response rather than changing the dispute referred.

Stay refused and indemnity costs awarded

The Court refused the defendant’s application for a stay of enforcement. There was no evidence that Westgreen was insolvent, that there was any risk of dissipation, or that the judgment sum would be irrecoverable if repayment were later ordered. The Court also rejected the argument that the advance payments were imminently repayable, finding that the contractual conditions for reimbursement had not occurred.

Summary judgment was granted for the outstanding £650,000, plus VAT of £43,615, the adjudicator’s fee of £19,866 and interest at £155.82 per day from the date of the Decision. Westgreen was also awarded its costs on the indemnity basis.

Practical takeaway

This decision reinforces the “pay now, argue later” principle at the heart of construction adjudication. Parties resisting enforcement must show more than disagreement with the adjudicator’s reasoning or an alleged error in how the dispute was analysed.

In practice, the TCC will ask whether the adjudicator answered the dispute actually referred and whether any alleged procedural unfairness was material to the outcome. Jurisdictional and natural justice challenges remain available, but they will only succeed in limited circumstances.

The judgment underlines the value of acting quickly to enforce a favourable adjudication decision. For paying parties, it is a reminder that resisting enforcement is difficult and that successful applications for a stay of enforcement will very much be the exception to the rule: they require clear evidence of special circumstances, not merely an argument that repayment may later be required or that the underlying dispute remains live.

Get expert construction law advice

If you need advice on adjudication, payment disputes, enforcement proceedings or any other construction law issue, Holmes & Hills’ specialist Construction Law solicitors can help. Contact us to discuss your position and the options available.