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

The usual abridged timetable was ordered in respect of the adjudication enforcement and the matter, therefore, first came before the court on the hearing of the application for summary judgment. At the start of the hearing, Mr Halkerston, for Henry, argued not only that the Part 8 claim should be determined at the same time but also that the Part 8 claim should be determined first because it was procedurally first in time and, more importantly, because if Henry’s claim was successful, it would provide a complete defence to the enforcement of the adjudicator’s decision.

I directed that the Part 7 proceedings, that is the adjudication enforcement, should be heard first and that I should hear first from Mr Shirazi on behalf of ProMep. That reflected the recent decision of the Court of Appeal in A&V Building Solutions Ltd. v J&B Hopkins Ltd. [2023] EWCA (Civ) 54. It also reflects the fact that the abridged directions for the hearing of this matter were made because it was an adjudication enforcement and not because of the Part 8 proceedings.

It was, further, in my judgment, not appropriate to hear the Part 8 claim at the same time. Decisions of the Technology and Construction Court, which are reflected in the Technology and Construction Court Guide at paragraphs 9.4.4 and 9.4.5, make plain the nature of Part 8 proceedings which the court will hear together with an adjudication enforcement such that the Part 8 proceedings become a defence to enforcement. The complexity of the arguments on the effect of the CVA were such they did not fall within these principles and there was plainly insufficient time to deal properly with all issues. As the hearing proceeded, Mr Halkerston, in fact, made many of the arguments relevant to the Part 8 proceedings but there was insufficient time for any response from Ms Stubbs KC on behalf of ProMep. It also became clear that the nature of the cases had developed and that some limited disclosure might be necessary. The parties undertook to agree directions leading to an further hearing in May.

A further procedural issue was raised by an application made by Henry, within the Part 7 adjudication enforcement proceedings, for specific disclosure of all documents containing the advice of ProMep’s counsel. The application was made under PD57AD paragraph 17 and/or PD 57AD paragraph 18 and/or Part 31.12 and/or Part 3.1(2)(m). The paragraphs of PD57AD relied upon are concerned with steps the court may take where there has been a failure adequately to comply with an order for Extended Disclosure or to vary an order for Extended Disclosure including by ordering disclosure of specific documents. Neither of those was relevant here. Part 31.12 and Part 3.1(2)(m) might procedurally have been relied upon for the court’s power to order specific disclosure but, in the exercise of any discretion, it would have been important to bear in mind that the application was made in the context of enforcement of an adjudicator’s decision and against the background that no issue had been raised in the adjudication.

The witness statement served in support of the application sought to explain the basis for the application. On 14 February 2023, Henry’s solicitors had requested from ProMep’s solicitors the full Advice of counsel. ProMep’s solicitors declined to provide that advice and continued to do so following further correspondence. Henry’s reasoning was based on the premise that the summary of the advice was material to the adjudicator’s decision. Henry said that, if the Advice was not disclosed, they would invite the court to draw the inference that the Advice did not support ProMep’s position and rely on the circumstances surrounding the Advice as a reason the court should not enforce the decision. If it was disclosed and showed that there had been a deliberate “cut and paste” in the summary, Henry would argue that there had been a deliberate misrepresentation of counsel’s advice and that for that reason the decision ought not to be enforced.

Before the full Advice was considered, Henry also relied upon an e-mail from Mr Stevens, one of the Supervisors, to Mr Hough, ProMep’s solicitor, dated 25 May 2022 which was exhibited to Mr Hough’s witness statement dated 10 March 2023. Henry submitted that the Supervisor noted “that ProMep’s counsel had in fact indicated, correctly, there was a right of set-off”. The e-mail, in fact, said:

I also note that the e-mail also said:

This disclosure application, although not the reasoning behind it, was overtaken by events. On 15 March 2023, ProMep’s solicitors, HQ Law, wrote to Henry’s solicitors, Archor, referring to another adjudication in respect of “the Optivo dispute” between these parties. The Referral in that adjudication had been served on 15 February and, in preparing the Reply, HQ Law appeared to have realised that the full version of Counsel’s Advice had been included in the documents served with the Referral. The court was provided with a copy of the Advice with passages that had not appeared in the summary shown in red and Mr Halkerston made further written submissions in respect of that Advice.