reflected the fact that the appeal was of a largely academic nature from the
outset.
Comment
This case decides nothing new but emphasises the need for the parties (and the
court) to follow the TCC Guide when dealing with parallel proceedings, to give
precedence to enforcement before part 8 applications, unless the point is short
one which can conveniently be dealt with as part of the enforcement. Here neither
party honoured the adjudicator's award in its favour. This factor ought to have
been at the forefront of the court's consideration of JBH's part 8 application. One
possibility (since strike out was not appropriate) would have been to adjourn that
application to be heard after the enforcement proceedings, but the court of
appeal did not take the opportunity to say so. Further and at first sight, more
surprisingly, neither the court below nor the court of appeal stated that the part 8
application could not or should not have proceeded until the first award had been paid (following the ‘ pay now argue later ’ policy). One can only conclude this leniency was due to the way the parties had behaved with neither honouring the
awards made, unexplained late applications to enforce, failure to follow the TCC
Guide and their concentration on the construction of the payment provisions.
Attacking an adjudicator's decision on enforcement
J & B Hopkins Ltd v A&V Building Solution Ltd [2023] EWHC 301 (TCC), Mr Roger Ter
Haar KC Judgement 15 February 2023
This case followed the unsuccessful appeal of AVB above. It was the hearing of
JBH's application to enforce the (second) adjudicator's award in its favour.
JBH was represented by counsel. AVB had no legal representation but appeared
by a director/shareholder and a surveyor employee. The Judge decided that the
9
Made with FlippingBook - Share PDF online