“117. (1) The Court of Appeal had ruled in paragraph [43] of its judgment 11 that as at April 2022 J&BH was in breach of contract because it had not paid the first adjudicator's decision "that should have been the first order of business"; ( 2) The same court held (at paragraph [17]) that "the first adjudication was made more complicated than it needed to be, in particular because J&BH's solicitors raised a number of unmeritorious jurisdictional challenges and generally failed to provide the sort of assistance to a lay adjudicator that I would expect"; (3) J&BH launched Part 8 proceedings raising arguments which the Court of Appeal held to be wrong (overruling the decision of Eyre J.); (4) Whilst these actions were not the sole cause of A&V's financial difficulties, I am satisfied on the evidence before me that the costs arising from these actions exacerbated A&V's financial difficulties; (5) The Court cannot ignore that J&BH is seeking to insist upon the "pay now, argue later" principle which it itself refused to honour; (6) There is no doubt in my mind that A&V's case that the second adjudicator's decision was wrong is arguable … ; (7) There is no prospect of execution of the judgment producing any financial reward for J&BH. The consequence of execution of the judgment would probably be an order winding up A&V, effectively preventing A&V from pursuing its claim which I have held to be arguable.
For the above reasons the court concluded that to refuse a stay of execution in the circumstances of
the case would or might cause a manifest injustice to A&V.
Stay of Action 6 of 2023
The court held an underlying factor justifying a stay in cases where a claimant has failed to honour an
adjudicator's decision by making payment before seeking a true valuation determination had been that
such failure was deliberate 12 .
Here, by the time the second adjudicator issued his decision, it would have been very difficult for A&V
to honour the decision even if J&BH had not complicated the matter by the Part 8 proceedings, and
impossible for A&V to do so whilst raising money to deal with those proceedings, weakened as it was
by J&BH's conduct before that date as held by the Court of Appeal.
This case was distinguishable on its facts from the previous authorities. Further, it would have been
inconsistent to order a stay of execution of the judgment against A&V on the grounds of the risk of
manifest injustice, and then on the other hand to order a stay of the proceedings brought by A&V.
Accordingly, J&BH's application for a stay of Action 6 of 2023 was refused.
Comment
This is an unusual case on unique facts. Apart from the effect of the conduct of one part y on the other’s financial position, this was a case where it was the court being asked to decide the final position
11 ( A&V Building Solution Ltd v J&B Hopkins Ltd [2023] EWCA Civ 54; 206 Con LR 184) 12 (See for example paragraphs [24] and [25] of the judgment in Anglo Swiss Holdings and paragraph [28] of the judgment in Kew Holdings ).
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