owed JBH the net sum of £82,956.88. Thus, at the time of the appeal, nothing was
due to AVB.
AVB did not pay the sum identified by the second adjudicator. The hearing of the
enforcement application in respect of the second adjudicator's decision was due
to take place after the hearing of the appeal but, for the appellate court's
purposes, it was sufficient to note that, on the face of it, the second decision meant
that no sums were thereafter due to AVB.
The powers of the court in adjudication
Permission to appeal had been given on three grounds (and refused on others).
The first (Ground 1) concerned the substantive and procedural propriety of the
part 8 proceedings: was JBH permitted to commence and/or to continue such
proceedings, or should they have been struck out? That raised a subsidiary issue: if
the part 8 proceedings were valid, how should they have been addressed in the
context of an outstanding adjudicator's decision in favour of AVB?
Coulson LJ, giving the judgment of the Court of Appeal, said that while the courts
were open to parties in adjudication proceedings, even in an ongoing
adjudication[6], regard must be had ton "the guiding principle behind construction adjudication: the ‘ pay now argue later ’ mantra." That did not mean parallel proceedings were invalid or an abuse of process. However, as the law had
developed, resorting to the courts during an ongoing adjudication for declarations
of the type sought was the exception, not the rule, and should not be used to
circumvent or undermine adjudication[7].
The proper approach to parallel proceedings was as outlined by O'Farrell J in
Structure Consulting Limited v Maroush Food Production Limited [2017] EWHC 962
(TCC). The judge should usually give judgment on the claim based on the
7
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