Comment
Examples of cases in which the courts have considered applications for freezing orders in the context
of adjudication enforcement appear to be rare. This judgment sets out the principles on which the court
will act, and the factors to be considered where the application is made after judgment has already
been obtained against the defendant. Where there is risk of dissipation of assets with a view to evading
payment, it is better to act as soon as possible, since delay will prejudice the chances of showing it is
just and convenient to make the order. The less draconian relief available to High Firs was to seek a
charging order in good time and otherwise to seek to freeze the proceeds of the sale. This case shows
the difficulty of demonstrating that a disposal is not being made in the ordinary course of business.
Effect of substantial Part 8 application on Part 7 – Compliant final date for payment – Hybrid payment and pay less notices
Lidl Great Britain Ltd v Closed Circuit Cooling Ltd t/a 3CL [2023] EWHC 2243 (TCC) HH Judge Stephen Davies sitting as a High Court Judge judgment 11 September 2023
Lidl sought various declarations concerning the construction of the payment provisions of the framework agreement with 3CL, the validity of 3CL’s interim payment application, and as to the validity of what it claimed was its own ‘payment notice’ which , if granted, would have overturned the adjudicator’s decision in 3CL’s favour. 3CL applied to enforce the decision. By agreement of the parties and in accordance with the Technology and Construction Court (TCC) guidance, the applications were
listed to be heard together, a full day being allowed. (Fortunately for the parties, the judge managed to
find a separate full day for pre-reading.) Despite excellent written submissions, argument over the many issues took a further full day. In a reserved judgment, the judge granted 3CL’s summary judgment application and denied Lidl’s Part 8 application.
Findings
1. Disposition of Part 8 application.
Issues as to jurisdiction and natural justice were potential defences to, and would (usually must)
be heard at the same time as, enforcement. Part 8 proceedings relating to matters allegedly
wrongly decided by the adjudicator would only be heard at the same time as Part 7 enforcement
application if pre-reading and hearing time allowed, and disposal and the right to payment of
the award would not be unduly delayed.
2. Final Date for Payment
There is a difference in the latitude allowed to contracting parties by the Act between
calculating the due date for payment and fixing the final date for payment. The former requires “ an adequate mechanism ” and can be fixed by an act or event such as submitting a payment
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