court had power to allow the employee to appear as a 'McKenzie friend'[9] since it
was apparent the director (who was entitled to appear) could not fully deploy the
arguments relied on by AVB and that it was in the interests of justice to do so.
AVB put forward arguments in three categories.
First that JBH had not followed the applicable pre-action protocol in failing to
respond to AVB's letter of claim and therefore, the enforcement proceedings
should be struck out. Although it was made late, that was not fatal to the strike our
application as JBH's counsel, once aware of it, was able to deal with it. The court
dismissed the application since the protocol did not apply to adjudication
enforcement proceedings. The letter of claim was, however, useful in summarising
AVB's complaints about the adjudicator's award.
The second argument centred on a complaint that the adjudicator had found a
sum due to JBH, contrary to the award in the first adjudication, which has been a
monetary award in its favour. Although it was doubtless a shock to AVB, who were
seeking an increased sum on the final account following a successful adjudication
on an interim account, to find a sum awarded against them, not for them, they
had not tried to argue that the second adjudicator was bound by the findings and
award of the first. Indeed, the final account dispute was a different dispute from
the interim payment dispute.
Looking at the jurisprudence, the law was conveniently summarised by Coulson
J[10] (as he then was) as follows:
"If the decision was within the Adjudicator's jurisdiction and the Adjudicator
broadly acted in accordance with the rules of natural justice, such defendants
must pay now and argue later."
10
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