An adjudicator has made a decision in your favour- but the other party is refusing to pay. Alternatively, enforcement proceedings have been issued against you and you need urgent advice on whether there are proper grounds to resist them.
Holmes & Hills’ construction solicitors act in proceedings to enforce and resist adjudicators’ decisions in the Technology and Construction Court.
We advise contractors, subcontractors, employers and developers across the UK in relation to enforcement proceedings in England and Wales. Our team has successfully secured summary judgment enforcing substantial adjudication decisions and defeated challenges based on alleged jurisdictional and natural justice breaches.
Enforcement proceedings can move quickly. If payment has not been made, or you have received a court claim, early advice is essential.
An adjudicator’s decision is generally binding unless and until the underlying dispute is finally determined through court proceedings, arbitration or agreement.
The unsuccessful party will ordinarily be required to comply with the decision, even if it believes that the adjudicator reached the wrong conclusion. This reflects the “pay now, argue later” principle at the heart of construction adjudication.
If payment is not made, the successful party can usually apply to the Technology and Construction Court for summary judgment.
The court will not ordinarily rehear the original dispute or decide whether the adjudicator made an error of fact or law. Its focus will generally be on whether the adjudicator had jurisdiction and whether the adjudication procedure was materially fair.
Before commencing enforcement proceedings, we will review the adjudicator’s decision, the adjudication documents and the reasons given for non-payment. We can then issue a demand for payment and, where necessary, commence Technology and Construction Court proceedings and apply for summary judgment.
We will deal with any jurisdictional or natural justice challenges, claims for interest and the adjudicator’s fees, and any application for a stay of execution. We can also advise on settlement proposals and the practical steps available if payment is not made following judgment.
Where there are signs that the paying party may be in financial difficulty, we will consider the prospects of recovery and the importance of acting quickly. A successful adjudication decision does not, by itself, secure payment. Delay can materially affect the position if the paying party becomes insolvent or dissipates its assets.
The grounds for resisting enforcement are deliberately limited.
The fact that an adjudicator may have misunderstood the evidence, interpreted the contract incorrectly or made an error of law will not ordinarily prevent enforcement.
A party seeking to resist enforcement will generally need to establish a serious issue affecting the validity or fairness of the process, such as:
Not every procedural irregularity will be sufficient. A breach of natural justice must ordinarily be serious and material.
Jurisdictional objections should also be raised and properly maintained during the adjudication. Participating without reserving the relevant position can affect a party’s ability to rely on that objection during enforcement proceedings.
If you have been served with adjudication enforcement proceedings, obtain specialist advice immediately.
We will review the Notice of Adjudication, Referral Notice, appointment documents, parties’ submissions and the adjudicator’s decision to determine whether there are sustainable grounds to resist enforcement.
A party cannot normally prevent enforcement simply by repeating the arguments that failed during the adjudication. A separate counterclaim, set-off or allegation that the adjudicator reached the wrong conclusion will also not usually provide a defence to payment.
Where there is no proper basis for resisting enforcement, we can advise on the commercial alternatives, including settlement or an agreed payment arrangement. Pursuing an unmeritorious defence may result in additional interest and an adverse costs order.
A party may accept that judgment should be entered but ask the court to delay enforcement by granting a stay of execution.
A stay is not automatic. The court will consider whether there are special circumstances that justify preventing or delaying payment. This commonly includes the financial position of the party seeking to enforce the decision and whether there is a real risk that the judgment sum could not be repaid if the dispute were later finally determined in the paying party’s favour.
The court may also consider whether the enforcing party’s financial position was caused by the paying party’s failure to comply with the adjudicator’s decision.
Clear financial evidence will normally be required. A general concern that repayment could later prove difficult is unlikely to be sufficient by itself.
Holmes & Hills advises parties seeking and resisting stays of execution and can assess the legal, evidential and commercial position at an early stage.
Holmes & Hills acted for Westgreen Construction Limited in successful Technology and Construction Court proceedings to enforce an adjudicator’s decision.
The underlying dispute concerned two advance payments totalling £650,000 under an amended JCT Standard Building Contract Without Quantities 2016. The adjudicator decided that the amount properly due to Westgreen was £733,062.40 excluding VAT.
The other party paid £83,062.40 but refused to pay the outstanding balance. Westgreen therefore commenced enforcement proceedings.
The defendant sought to resist enforcement on jurisdictional and natural justice grounds and also applied for a stay of execution. The Technology and Construction Court rejected those arguments.
Summary judgment was granted for the outstanding £650,000, together with £43,615 in VAT, the adjudicator’s fee of £19,866 and continuing interest. The court refused the application for a stay and awarded Westgreen its legal costs on the indemnity basis.
The decision demonstrates the court’s robust approach to adjudication enforcement. An unsuccessful party must establish more than disagreement with the adjudicator’s reasoning or the way in which the evidence was assessed.
Read the Westgreen adjudication enforcement case study.
Every matter depends on its own facts. Previous outcomes do not guarantee a similar result in another case.
Holmes & Hills has a dedicated Construction Team advising clients across the UK.
We act in both construction adjudications and subsequent Technology and Construction Court proceedings. This allows us to identify potential enforcement issues during the adjudication and maintain a consistent strategy from the initial Notice through to payment.
Our experience includes payment and valuation disputes, contract formation, final accounts, termination, jurisdictional challenges and alleged breaches of natural justice.
The Construction Team is independently recognised by Chambers and Partners and The Legal 500. Our advice is direct, practical and focused on securing the commercial result the client needs.
The successful party can usually commence proceedings in the Technology and Construction Court and apply for summary judgment. A formal demand for payment will normally be sent before proceedings are issued.
Enforcement proceedings are intended to be dealt with promptly, although the precise timetable will depend on the court and the circumstances of the case. Parties should act quickly once it becomes clear that payment will not be made voluntarily.
Ordinarily, no. The court will not usually rehear the underlying dispute or refuse enforcement because the adjudicator may have made an error of fact or law.
Potentially, but the threshold is high. The challenge must be genuine, properly evidenced and material. Jurisdictional objections should also have been properly preserved during the adjudication.
Generally, a separate counterclaim or set-off cannot be used to avoid complying with an adjudicator’s decision. The paying party may need to pursue that claim separately while complying with the decision in the meantime.
No. A court judgment establishes the obligation to pay, but further enforcement measures may be required. Recovery can become significantly more difficult if the debtor is insolvent, which is why early action and financial checks are important.
If an adjudicator has made a decision in your favour and the other party has not paid, speak to our Construction Team about enforcement.
If proceedings have been issued against you, obtain advice immediately so that any potential jurisdictional, natural justice or stay arguments can be assessed before the court deadline.
Call us on 01206 593933 and get expert advice from a specialist Construction Law solicitor. Or complete the form below.
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