The conclusions of the court on the inadequacy of the letter of intent from H&J's bankers, and the terms of the ATE cover, were the same, whether they were considered under the "real risk" test (above), or whether this was the "usual case" under [26](e) of Wimbledon criteria. Because JDC was in insolvent liquidation, there was nothing sufficiently exceptional to displace the usual order of the court to grant a stay of execution.
2) Jurisdiction – request for appointment preceding notice of adjudication: Lane End Developments Construction Ltd v Kingstone Civil Engineering Ltd [2020] EWHC 2338[12]
Background
Lane End was engaged by Kingstone to provide supervision, labour and materials for site works, under a sub contract containing no provision for adjudication, in the absence of which the adjudication provisions of part 1 of the Scheme were incorporated as implied terms. Lane End made an application for interim payment no. 17 for £356,439.19. Kingstone served no pay less notice and its payment notice was given late. On 20 March 2020, at 07:46 Lane End made a request by email to the RISC to appoint an adjudicator. Later that same morning a meeting took place at Kingstone’s office to try and resolve the question of entitlement. At the meeting, Lane End informed Kingstone they had commenced two sets of adjudication proceedings and later in the meeting around 11 am provided Kingstone with what was “apt to be” an adjudication notice. A representative of Lane End made a secret sound recording of the meeting at which it was alleged by them that Kingstone had acknowledged the fact that proceedings had been commenced.
Had summary judgment been granted, the court would have ordered a stay of execution.
Procedural observations The court observed that the streamlined and rapid procedure developed by the TCC for adjudication business was developed to match the ethos and intention of adjudication, to give parties to construction contracts quick answers to disputes, often during construction projects themselves. That procedure was not required, or even suitable, for summary judgment applications such as the one in this case where the dispute was historic. The court also criticised the large amount of evidence that had been filed, including in particular a number of long witness statements containing “extensive argument”. As Fraser J. put it: “Notwithstanding the importance to both parties of the outcome...,, such a volume of evidence is not necessary. Submitting more numerous, and longer, witness statements than necessary is a temptation that parties generally seem unable to resist.”
[12] Before His Honour Judge Halliwell sitting as a judge of the high court at Manchester
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