In legal terms there were misrepresentations, which were false and which had induced Mr Judkins to reach his decision not to
7. The fraud point could not have been taken in the adjudication because it only emerged after detailed review of documents disclosed in court proceedings after 23 November 2018 and given the complexity of the task (57,000 unordered documents, 17,000 of which were in Czech or Slovak, without translation), and the weight of work upon the adjudication case. Therefore it was open to Bester to take the point upon enforcement. 8. The award could not be reengineered and severance was not available. 9. The mere assertion by PBS that it was entitled to payment of other sums (claims yet to be established) and the alleged poor financial position of Bester were not reason to refuse Bester permission to defend. This was one of those rare cases where summary judgment would be refused. 4.Insolvency – effect of administration on enforcement Indigo Projects London Ltd v Razin & Anor 8 The Claimant company applied for summary judgment to enforce an adjudicator’s decision in its favour. The Defendants opposed the application on the ground that the Claimant had subsequently entered into a company voluntary arrangement (CVA) and would not have the means to repay the sum in dispute if subsequently ordered to do so. The Defendants had engaged the Claimant to build a house and a dispute arose concerning alleged defects and delay. The Claimant issued an interim payment notice and because the Defendants failed to serve a pay less notice, the sum claimed in the payment notice became due for payment. The whole sum due was not paid and the Claimant commenced adjudication. The adjudicator decided that the Defendants should pay the amount due under the interim payment notice, less the sum previously paid. Payment was to be made within seven days but the Defendants again failed to pay. The Defendants had a claim for liquidated damages, and issued a pay less notice seeking to set off the difference between the gross valuation of the work done by the Claimant, and the amount previously certified, thus reducing the sum owed by the Defendants to nil. A month later, the Claimant entered into a CVA, clause 7 of which required that where there had been dealings between the Claimant and a creditor, an account was to be taken of what was due from each party to the other, and the sums due from one were to be set-off against the sums otherwise due.
grant any credit. The Court found:
1. A number of representations had been made by PBS: a. as to the existence and availability (upon payment) of certain items of equipment; b. that PBS had made efforts to sell the equipment to no avail; c. that PBS had sold a water cooled grate for which it said it had not been paid and that title would not pass until it was paid and thus it was held to Bester’s order; d. that upon achieving a sale it would give credit to Bester. 2. There were material falsities on these representations as to: a. what was available; b. as to the sale of the water cooled grate and that the failure to give credit even after sale was a matter of intention; c. PBS had neither paid for nor obtained title to certain gas-flue cleaning equipment and had never held to Bester’s order thus achieving a saving of £200,000; d. That the fabric filter being the only component actually required by PBS was suitable for other projects; e. It was properly arguable that another valuable piece of equipment (the SNCR) was no longer available to Bester, as claimed by PBS. 3. The admission by PBS that “there may be some slight variation in what equipment was available to hand over” was not good enough and it was incumbent on PBS to explain any discrepancy openly and fully. 4. Fraud was proved when a false representation had been made knowingly or without belief in its truth or recklessly in the sense of not caring whether it was true or false. 5. It was properly arguable that PBS made false representations to the adjudicator knowing them to be false, or without belief in their truth, or, at the very least, recklessly. 6. It was clear the adjudicator Mr Judkins had rejected Bester’s case on credit based on the evidence of PBS that it had been unable to sell or use the equipment on other projects. And he had understood that the parts were to be held to Bester’s order and available upon payment or credit would be given for any part resold or used. The false representations were intended to and did influence Mr Judkins to the material advantage of PBS.
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