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Adjudications: quick answers more important than right answers

Challenges to Adjudication enforcement applications are rarely successful.  Whether or not the Adjudicator's decision is right or wrong is not a matter for the Court to determine.  The recent case of Vinci Construction UK Limited v Beumer Group UK Limited provides further evidence of the approach adopted by the Courts, supporting Adjudication.

Summary

An adjudicator's decision is binding (until the issues are finally determined by litigation, arbitration or agreement between the parties), and there is no right of appeal.  If the losing party chooses not to comply with an adjudicator's decision, the successful party will usually commence enforcement proceedings and apply for summary judgment.  A challenge to the enforcement is unlikely to succeed, as the Courts' approach is to support adjudication.

Background

In the recent case of Vinci Construction UK Limited v Beumer Group UK Limited [2018] EWHC 1874 (TCC), Mr Jonathan Acton Davis QC was asked to enforce the adjudicator's decision to award Vinci £9,671,500 in respect of liquidated damages due for Beumer's delay.

Beumer was appointed by Vinci in 2012 pursuant to an amended NEC3 Engineering and Construction Sub-Contract to carry out the design, manufacture and supply of the baggage handling system at Gatwick Airport.  In the seventh(!) adjudication between the parties, Vinci sought and was awarded liquidated damages in the sum of £9,671,500.  Beumer refused to pay, Vinci commenced enforcement proceedings and applied for summary judgment.

In previous proceedings between the same parties, Mr Justice Fraser confirmed that  "Adjudicators'  decisions will be enforced by the Court by summary judgment regardless of errors of fact and/or law by the Adjudicator."  He further cited Lord Justice Chadwick's previous comments that "the need to have the "'right" answer has been subordinated to the need to have an answer quickly".  Adjudication decisions will be enforced except in cases of clear breaches of natural justice.

Beumer alleged that the Adjudicator's decision included findings that were inconsistent with findings made in the previous adjudications, that the Adjudicator did not give adequate reasons and that the Adjudicator did not order Vinci to disclose material from a previous adjudication between Vinci and another party which Beumer said showed Vinci was advancing inconsistent positions.

Decision

The Court determined that the findings were not inconsistent and the reasoning in the Decision was clear.  The Decision does not need to be to the standard of a Court Judgment, it simply has to be clear enough to understand the Adjudicator's reasoning, irrespective of whether that reasoning is right or wrong. 

As to the final argument, the Court considered that there was no evidence that Vinci had advanced inconsistent positions in different proceedings, although the Court was clear that it was highly inappropriate for a party to do so and doubted whether it should be possible, given the need to sign a statement of truth in each set of proceedings. The Adjudicator had given Beumer the opportunity to make good its assertions and it had failed to do so.  Accordingly, there had been no breach of natural justice.

Comment

Whilst this case does not raise any new or novel points, it is always interesting to note the Court's continuing desire to support adjudication and the quick enforcement of decisions. The Notice of Intention toRefer to Adjudication was issued on 20 March 2018 and the Adjudicator's Decision delivered on 2 May 2018.  Vinci issued proceedings on 16 May 2018 and the Court's Judgment handed down on 24 July 2018.

Contact

For more information please  contact Malcolm Rogers, Senior Associate, malcolm.rogers@dwf.law  0113 204 1846

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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