Originally the appellant appealed on four grounds. Permission to appeal on the first two grounds was refused. The third ground of appeal was procedural: that an allegation of fraud should have been pleaded in a defence served in answer to the summary judgment application. The court of appeal held there was no such requirement in the rules or the TCC procedure developed to deal with adjudication enforcement. The appellant had chosen to avail itself of the TCC accelerated procedure which was designed to enforce the adjudicator's decision as swiftly as possible. There was no warrant for imposing an additional procedural step and no inherent unfairness. The conclusion did not prejudice the appellant in this case or claimants generally. Ground 4 asserted that the Judge failed properly to distinguish between refusing summary judgment on the one hand, and granting summary judgment and then staying its execution, on the other. The suggestion being that the judge should have granted summary judgment and then, if he had been concerned about the allegations of fraud, stayed its execution, in whole or in part. The ground fell away with ground 1, but in any case it was not an assertion which was open to the appellant because it was not raised before the Judge. There was one further issue: the effect of the final determination on the question of the validity of the termination of the subcontract. That question had been finally determined in the respondent’s favour by Cockerill J. Her judgment superseded the decisions of both adjudicators. It would be wrong in principle now to enforce Mr Judkins' decision, even if the appellant had been successful on Grounds 3 and 4.
The court of appeal stated that a defendant to an adjudication enforcement claim might be well-advised to provide a pleaded defence setting out any allegations of fraud. However, there is no mandatory requirement to do so if the claimant was seeking summary judgment. CPR 24.4(2) provided to the contrary. In a case where substantial allegations of fraud were found to be arguable, the right course would usually be the one taken by the Judge, namely to refuse summary judgment, meaning no question of a stay of execution then arose. Comment In this case the allegations of fraud were sufficiently set out in the respondent’s skeleton arguments (in accordance with the Bar Council’s guidelines alleging fraud) and detailed in the supporting witness statements. This enabled the court to find there was no unfairness or prejudice to the appellant. It is also worth noting that this judgment supports previous case law that allegations of fraud that are made in the adjudication and dealt with by the adjudicator (or which could and should have so raised and dealt with), will not provide grounds for resisting enforcement.
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