107772.001 SH Construction Case Booklet

8. Transfer of Proceedings – Court’s powers to transfer hearings Enforcement—permission to continue proceedings under s.252 Insolvency Act 1986 Dr Cyril Chern v (1)Apilosa Corporation (2) AR Architecture Limited 13 The Claimant (“Dr Chern”) was an adjudicator who had conducted an adjudication in 2017 and gave a decision in favour of the Defendants. Dr Chern had received a substantial on account payment and brought proceedings against the Defendants for the balance of his fees on a joint and several basis. The second defendant (“AR”) said the total fee claimed of £168,000 was unreasonable given the straightforward nature of the adjudication. AR applied for the proceedings to be transferred to the High Court (Technology and Construction Court) from the Central London County Court. AR said that the characteristics of the case meant that it would be better dealt with in the High Court in accordance with the guidance in West Country Renovations 14 . Those characteristics included the sensitivity of the matter, the conduct of the Claimant, the provision of timesheets and the allegation of overcharging. Fraser J held that there was no reason in principle why a simple case about whether an adjudicator’s fees were reasonable should not be decided by a circuit judge in the TCC list of a county court. The dispute was purely factual and straightforward and did not require a High Court judge’s consideration. The application was refused. 9. Summary Enforcement – Enforcement of adjudicator’s decisions – Interim payments – Pay Less Notices – Liquidated Damages See S&T (UK) Limited v Grove Developments Limited An employer is entitled to seek adjudication under a construction contract to determine the correct value of the works under an interim application, even if it had failed to serve a payment notice or a pay less notice. In order to commence such an adjudication it had to have paid the interim application amount. Enforcement—Enforcement of adjudicator’s decision – milestone payments See Birmingham City Council v Amey Highways Ltd Where milestone certification had been set aside, there was no legal basis for the money wrongly paid as a result of the certification to be retained. The Court enforced the adjudicator’s decision for the money to be repaid pending a valid milestone certification process.

Enforcement – Enforcement of Adjudicator’s Decision – Stay of proceedings - Declarations Sought See Ealing Care Alliance Ltd v London Borough of Ealing The Court refused to stay enforcement proceedings of an adjudicator’s decision and the Claimant was able to proceed with its market testing without having to stipulated that its right to do so was subject to legal challenge as it would deter potential bidders and prevent it from having the benefit of the adjudicator’s decision that market testing should proceed. Jurisdiction – Bias See Charles David Hoyle v B.A.K. Building (Contracts) Limited A party cannot rely on not agreeing to adjudication to absolve them from any responsibilities for fees. Particularly where it partakes in the adjudication and does not maintain any jurisdictional or natural justice challenges or reserve its right to do so at a later date. The Court confirmed it would not deal with questions of whether an adjudicator was right or wrong on a summary judgment application. Natural Justice See BSW Building Services Ltd v Adur District Council An adjudicator’s decision would be in breach of natural justice and would not be enforced where he had made his decision on a basis not put forward by either party or which the Defendant had not had the opportunity to address. Natural Justice – Setting off See Synergy Gas Services Limited v Northern Gas Heating Limited It was rare for the courts to intervene where breaches of natural justice arguments were raised unless it was plain that the adjudicator had decided a different question to that referred to him or had gone about a task in an unfair manner. Here the adjudicator’s decision was sufficiently covered by arguments raised by way of a Scott schedule. Transfer of Proceedings – Court’s powers to transfer hearings See Dr Cyril Chern v (1)Apilosa Corporation (2) AR Architecture Limited Where a case of a straightforward and purely factual nature is brought before the TCC, it is suitable for it to be dealt with by the County Court in the TCC list. It is not always necessary for it to be transferred to the High Court.


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