Outwing Construction Ltd -v- H. Randell & Son Ltd
It was proper and prudent for the sub-contractor to have commenced court proceedings by issuing a writ as its chosen method of enforcing the adjudicator's decision for the contractor to pay monies to it in circumstances where the Scheme for Construction Contracts applied
15 March, 1999
The sub-contractor claimed the unpaid balance of its final account. An adjudicator was appointed who decided that the sub-contract did not comply fully with section 108 of the Construction Act 1996 with the result that the Scheme for Construction Contracts applied. The adjudicator decided that the contractor should pay the sub-contractor the amount claimed within seven days of the date of the decision and ordered that it should be comply with his decision peremptorily. On non-payment the sub-contractor gave notice that unless it received payment by the date it specified, it intended to invoke paragraph 24 of the Scheme by obtaining summary judgment. The contractor contended that it had given notice of arbitration, that the adjudicator had erred in a number of respects, including exceeding his powers and that payment was not due. The sub-contractor brought court proceedings to enforce the judgment and applied for summary judgment. Judge LLoyd held that it was proper and prudent for the sub-contractor to have commenced court proceedings as its chosen method of enforcing the decision where the Scheme applied. This was because paragraph 23(2) of the Scheme provided that the adjudicator's decision was to be binding and that the parties were to comply with it until the dispute was finally determined. Paragraph 24 of the Scheme provided for the enforcement of decisions by way of section 42 of the Arbitration Act 1996 (as amended by the Scheme) where the adjudicator ordered any of the parties to comply peremptorily with his decision. Enforcement by section 42 was not expressed to be the only possible method of enforcement under section 42 and it was held by Dyson J in Macob Civil Engineering v Morrison Construction (1999) that a party wishing to enforce a decision was not confined to it. Lastly enforcement by court proceedings was the obvious and natural way to enforce a decision that required the payment by one party to the other of a sum of money. Advice Note This early judgment confirmed that the courts accept that the standard method of enforcing adjudicators? decisions is to bring court proceedings and to apply for summary judgment in those proceedings. The fact that the contract contains an arbitration agreement does not mean that this method is not proper.