HT-2023-000016 - [2024] EWHC 1825 (TCC)

Leaving the Part 8 proceedings to one side, in my judgment, Henry has no defence to enforcement of the adjudicator’s decision.

It is well-established that the court will enforce the decision of an adjudicator made within his jurisdiction subject to limited exceptions.

As I have said, one line of defence was that ProMep had procured the decision in its favour by fraud, being the misrepresentation of its understanding of counsel’s opinion, supported by an inaccurate or partial summary. For the reasons given above, I do not consider that it is arguable that ProMep acted fraudulently but I also do not consider that, if there was any misrepresentation either of counsel’s advice or ProMep’s understanding of that advice, it could be considered material. At the risk of repetition, presenting an adjudicator with advice from counsel is a technique commonly adopted to persuade but no more than that. Giving a summary of advice rather than providing the full Advice is a variation of the technique. In all these circumstances, the adjudicator is simply being presented with a legal argument and has to reach his own decision on the law. That is what happened in this case. I do not go so far as to completely exclude the possibility that there may be circumstances in which a legal opinion is so badly misrepresented to an adjudicator that it is capable of amounting to fraud but such circumstances are extremely difficult to envision.

Henry’s further submission amounted to an argument that the position on enforcement should be different where the issue concerned an insolvency set-off and relied on the decision in John Doyle Construction Ltd. v Erith Contractors Ltd. [2021] EWCA Civ 1452. In that case, John Doyle had an adjudicator’s decision in its favour on its final account but, being in liquidation, the issue that arose was whether it was entitled to summary judgment irrespective of the potential set-off of cross claims in the liquidation. The short answer was that it was not. Henry submitted that, even if the court could not determine the Part 8 claim at the same time as the enforcement proceedings, it should nonetheless not grant summary judgment because, so long as Henry’s position was arguable, it might be the case that the insolvency set-off applied and the position would be the same as or analogous too that in John Doyle.

There is, however, a distinction between a liquidation in which the application of rule 14.25 is mandatory and a CVA in which it is not. In John Doyle, Coulson LJ said at [98]:

In this case, the issue that was properly before the adjudicator was whether the insolvency set-off applied at all which was a question of the construction of the CVA which had already concluded. The adjudicator decided that the insolvency set-off did not apply. To enforce the decision in those circumstances does not disapply mandatory rules or give rise to incoherence. Henry’s argument is a variation on the theme that the adjudicator was arguably wrong and that, therefore, his decision ought not to be enforced and does not provide a reason to refuse enforcement.

Having said that, because the Part 8 proceedings were heard before any decision on the enforcement, it is appropriate to take account of my decision on those proceedings.