Case 7: Marbank Construction Ltd v G&D Brickwork Contractors Ltd [2021] EWHC 1985 (TCC) 28 June 2021 O’Farrell J – injunction to restrain adjudication In the exercise of its discretion a court may grant an injunction to restrain a party from pursuing an adjudication pursuant to s37 of the Senior Courts Act 1981 applying American Cyanamid principles: court could only interfere in limited circumstances.
Conduct in commencing three sets of adjudication proceedings were commonplace Taken together these features did not amount to unreasonable or oppressive behaviour. The court noted that unlike Mentmore Towers Ltd v Packman Lucas Ltd[4] the adjudications had not been enforced and G&D was not in breach of any court order. However and significantly, if the subject matter of the adjudications were to trespass on a court decision, that could prevent the adjudicator from having jurisdiction and it would follow, the court from enforcing any decision. Finally following the reasoning of Lord Briggs in Bresco Electrical Services Ltd v Michael J Lonsdale (Electrical) Ltd[5] the court was reluctant to interfere in adjudication. Jurisdiction was a matter that could and should be dealt with at the enforcement stage.
Background
G&D a sub-contractor had taken CC proceedings for sums claimed owing over 3 construction projects. The court proceedings were struck out. This lead G&D to refer the three disputes to adjudication with further ones intimated. Marbank argued the adjudications were unreasonable and oppressive. They raised the same or substantially the same issues as the CC proceedings which had been struck out. It intended to pursue Part 8 proceedings to deal with these jurisdictional points and needed an injunction to give it time to do so.
In dismissing the application for an injunction, O’Farrell J noted:
G&D had a right to commence adjudication proceedings at any time. It was not for Marbank to dictate when that might be.
Irrecoverable costs were simply a feature of the process.
[4] [2010] EWHC 457 (TCC) [5] [2020] UKSC 25
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