The adjudicator found that KWC was not entitled to the relied sought in the absence of satisfactory proof. An argument that the court should refuse to enforce the original award one year after it was made in light of intervening developments was held to be without substance. There was no basis for a stay on the grounds of manifest injustice. An argument that KPR was impecunious was not pursued and was described as being wholly without merit. There was no suggestion that either award was made without jurisdiction or that either adjudicator had acted contrary to the principles of natural justice. Or that the plaintiff KPR was impecunious and unable to pay any future award in favour of the defendant. None of the arguments available to the defendant amounted to a reasonably arguable defence. Judgment for the plaintiff on each award.
The court referred to the “pay now argue later” principle governing enforcement of adjudicators’ awards emphasising the robust approach taken by courts even where the defendant asserted a counterclaim. The court added that the power to grant a stay it was a fundamental principle that a stay would not be granted simply because the defendant had a claim which would be determined in the near future. Allowing a stay would have the same effect as allowing a set off of the counterclaim. The only basis for stay was financial impecuniosity of the plaintiff per Wimbledon[9]. The defendants argued that since neither adjudicator had made an award in favour of the KPR, there was nothing to enforce and thus no cause of action. The court was referred to the judgment of Mr Recorder Andrew Singer QC in WRW Construction[10] where as a matter of principle and authority the court found it could enforce the consequences of a valid and binding award even though it did not contain an express obligation to make payment. The court agreed. To hold otherwise would be to compel the parties to engage in further adjudication proceedings to which there would be no defence and undermine the intention of the legislation. The court dismissed a suggestion that relief should not be granted because KPR had waited for 8 months before bringing enforcement proceedings. There was no time limit for an application under Order 14. Both Covid-19 lockdown and the long vacation had intervened. There was no prejudice to the defendants. KWC raised what was called the “Insurance Point”. In contract (ii) KWC made a claim for damages caused by a water leak. The adjudicator had found KPR was responsible, but it was too early to assess the loss. KWC then entered into an agreement with its employer for the deduction of £100,000 for the damage and started fresh adjudication proceedings for that sum.
Comment
It is of interest but unsurprising that the High Court of Northern Ireland followed the decision of Mr Recorder Andrew Singer QC in WRW. These two cases taken together are persuasive authority in support of the proposition that a ‘negative award’ in favour of a referring party which produces a balance due to the other party, is enforceable as to payment without an express order for payment. As things stand an express order for payment is unnecessary and probably undesirable unless the referral encompasses such relief. Whilst these propositions may yet be tested at a higher level, they are more likely than not to be followed at first instance.
[9] Wimbledon Construction v Derek Vago [2005] EWHC 1086 [10] WRW Construction v Datblygau Davies Developments [2020] EWHC 1965 (TCC)
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