Pochin Construction Ltd v Liberty Property (GP) Ltd (TCC - 28.7.2014)
POCHIN CONSTRUCTION LTD v LIBERTY PROPERTY (GP) LTD
Technology and Construction Court
28th July 2014
There was a dispute in relation to a valuation which the claimant referred to adjudication. The adjudication proceedings were contested on their merits and three jurisdiction objections were raised in the adjudication which the adjudicator rejected. The adjudicator awarded the contractor a specified sum and ordered the defendant, to pay his fees and expenses. The adjudicator reduced the amount which the claimant was claiming by about half and looked at the matters in issue within the overall umbrella of the dispute in some detail. The defendant served an acknowledgement of service in the enforcement proceedings but did not participate in the enforcement proceedings or communicate with the court in relation to the hearing despite in the past having used specialist construction counsel.
Akenhead J held that in the absence of the defendant being represented in the enforcement proceedings (i) The adjudicator’s decision awarding the claimant a specified sum and ordering the defendant to pay his fees and expenses should be enforced and (ii) The defendant should pay the claimant’s costs of the enforcement proceedings on an indemnity basis.
Counsel for the claimant submitted a skeleton in which he properly identified three possible challenges to the adjudicator’s jurisdiction which were raised by the defendant during the adjudication. However, in the absence of any hint or suggestion by correspondence or otherwise that the defendant wished to maintain any such objections formally or informally, it was not necessary to comment on those challenges other than to say that (i) The challenges appeared to lack any merit and (ii) It is not necessary for the court to address the merit of defences which might be advanced by a defendant who has felt it unnecessary to attend the enforcement hearing. There could not be any doubt that the claimant was entitled to its costs of the enforcement proceedings on an indemnity basis in the absence of any hint or suggestion of any defence and it was noteworthy in this connection that (i) This was obviously not an unsophisticated defendant (ii) The defendant had access to junior and leading counsel here even though it is registered in the Isle of Man and also had access to solicitors (iii) If the defendant had wanted to raise any appropriate point it, could have done so even if it had not attended and (iv) There therefore did not seem to be any conceivably justifiable reason for the defendant to have refused to pay in the first place.