Enforcing a decision

Adjudication produces a decision that is binding until the dispute is finally resolved by litigation, arbitration or agreement. Temporary, but binding now. The losing party is expected to comply, and if it does not, the winner goes to court to make it.

Pay now, argue later

The principle that runs through enforcement is pay now, argue later. The court enforces the decision even if it suspects the adjudicator got the answer wrong. The whole point of the scheme is to keep money moving through the industry, so an error in the decision is not, on its own, a reason to refuse enforcement.

A party that thinks the adjudicator was mistaken has a remedy. It can take the underlying dispute to final determination and recover any overpayment then. What it cannot do is use its disagreement to resist paying in the meantime.

Summary judgment in the TCC

Enforcement is handled by the Technology and Construction Court through summary judgment. The mechanism is efficient because summary judgment is designed for claims where the defendant has no real prospect of defending. An adjudicator's decision fits that description: it is binding, and the grounds for going behind it are limited.

The practical shape is a Part 7 claim issued together with an application for summary judgment, put before the TCC on an abridged timetable. Enforcement hearings are typically listed quickly, often in the region of six weeks, though that is a usual pace rather than a fixed deadline. The court runs these matters at speed on purpose, because delay defeats the object of the scheme.

The narrow defences

The defences to enforcement are deliberately confined. In substance they come down to two categories, and neither of them is the merits of the dispute.

• Jurisdiction. The adjudicator had no power to decide the dispute referred, for example because there was no construction contract, or the dispute had not crystallised, or the adjudicator strayed beyond what was referred.
• Natural justice. The adjudicator conducted the process unfairly, for example by taking a point neither party had the chance to address, or by failing to consider a defence that was properly put.

Outside those categories the door is largely shut. A party that simply disagrees with the outcome, or thinks the adjudicator misread the contract or the valuation, is arguing the merits, and the merits are for the final tribunal, not for the enforcement court.

Insolvency as an obstacle

One situation can genuinely stand in the way of enforcement: the insolvency of the winning party. Where the party that succeeded in the adjudication is insolvent, the court has to weigh whether enforcing an interim, temporarily binding decision is appropriate when the money may not be recoverable if the final account runs the other way.

The principles here come from Bresco and Meadowside. An insolvent company is not shut out of adjudication altogether, but enforcement of a decision in its favour raises questions about set-off across the parties' dealings and about the security available to the paying party if the position later reverses. Enforcement in that setting is possible, but it is not automatic, and adequate safeguards may be required before the court will grant summary judgment.

What enforcement asks of your records

An adjudication is decided on evidence, and enforcement rests on the same foundation. The date of each certificate, the basis on which the sum was calculated, and the trail of changes across the job are the material an adjudicator weighs and, if it comes to it, the material the enforcement court sees the decision was built on.

Records that are contemporaneous, dated and traceable make both stages easier. They support the case put to the adjudicator, and they leave nothing for the losing party to pick at when it looks for a jurisdiction or natural justice point to resist paying.

The sequence, briefly

• The adjudicator decides; the decision binds temporarily.
• The loser does not pay.
• The winner issues a Part 7 claim with an application for summary judgment in the TCC.
• The court lists an enforcement hearing on an abridged timetable, typically around six weeks.
• The court enforces unless the loser can show a lack of jurisdiction or a breach of natural justice, or unless the winner's insolvency makes enforcement inappropriate.

The scheme is built to be fast and hard to resist, because the industry depends on it working that way. For the party that has won, the message is straightforward: the decision is enforceable now, and the disagreement, if there is one, is an argument for another day.