Cases Part 2 2023 - final

(b) In consequence, adjudicators' decisions are intended to be enforced

summarily and the claimant (being the successful party in the adjudication)

should not generally be kept out of its money.

(c) In an application to stay the execution of summary judgment arising out of an

adjudicator's decision, the court must exercise its discretion with considerations a)

and b) firmly in mind (see AWG Construction Services v. Rockingham Motor

Speedway [2004] EWHC 888 (TCC)).

(d) The probable inability of the claimant to repay the judgment sum (awarded by

the adjudicator and enforced by way of summary judgment) at the end of the

substantive trial or arbitration hearing may constitute special circumstances

rendering it appropriate to grant a stay (see Herschell Engineering Ltd v. Breen

Property Ltd (unreported) 28 July 2000, TCC).

(e) If the claimant is in insolvent liquidation, or there is no dispute on the evidence

that the claimant is insolvent, then a stay of execution will usually be granted (see

Bouygues (UK) Ltd v. Dahl-Jensen (UK) Ltd (2000) 73 Con LR 135, [2001] 1 All ER

(Comm) 1041, CA and Rainford House Ltd v. Cadogan Ltd [2001] BLR 416).

(f) Even if the evidence of the claimant's present financial position suggested that

it is probable that it would be unable to repay the judgment sum when it fell due,

that would not usually justify the grant of a stay if:

(i) the claimant's financial position is the same or similar to its financial position at

the time that the relevant contract was made (see Herschell); or

(ii) the claimant's financial position is due, either wholly, or in significant part, to the

defendant's failure to pay those sums which were awarded by the adjudicator

(see Absolute Rentals v. Glencor Enterprises Ltd [2000] CILL 1637)."

The court also referred to the remarkably similar case of Westshield Civil

Engineering Limited v. Buckingham Group Contracting Limited[16], in which

Akenhead J refused a stay. There as here, the claimant had been a dormant

company both at the time of the subcontract and enforcement proceedings and

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