HT-2025-LDS-000008 - [2025] EWHC 2224 (TCC)

Fecha: 04-Abr-2025

The Law

The Law

The test for summary judgment is set out in CPR 24.3:

“The court may give summary judgment against a Claimant or Defendant on the whole of a claim or on an issue if—
(a)
it considers that the party has no real prospect of succeeding on the claim, defence or issue; and
(b)
there is no other compelling reason why the case or issue should be disposed of at a trial.”

To succeed against an application for summary judgment, a Respondent must show a real, as opposed to fanciful, prospect of successfully defending the case (Swain v Hillman [2001] 1 All ER 91). The defence must have some degree of conviction and be more than merely arguable (ED&F Man Liquid Products v Patel [2003] EWCA Civ 472).

The court must not conduct a mini trial but does not have to take a party’s case at face value. The court must take into account both the evidence actually placed before it and also evidence which can reasonably be expected to be available at trial. The court should hesitate to make a final decision without trial if reasonable grounds exist for believing that a full investigation into the facts would add to or alter the evidence available to the trial judge. The court is entitled to reject implausible evidence or that which is not supported by contemporaneous documents.

I was referred to the following materials:

Eurocom v Siemens [2014] EWHC 3710 and EWHC 685 (TCC);

Porter v Magill [2001] UKHL 67;

Derry v Peek [1889] 14 APP Cas 337 ;

Linnett v Halliwells LLP [2009] EWHC 319 (TCC) ;

Dimmock v Hallett (1866) LJJ 21 ;

Amec v Whitefriars [2004] EWCA Civ 1418;

Lanes Group Plc v Galliford Try Infrastructure Ltd (t/a Galliford Try Rail) [2011] EWCA Civ 1617;

R.G.Carter v Nuttall (No. 2) [2002] BLR 359;

Jacobs UK Ltd v Skansa Construction UK Ltd [2017] EWHC 2395 (TCC);

Wimbledon v Vago [2005] EWHC 1086 (TCC);

Gosvenor London Ltd v Aygun Aluminium UK Ltd [2018] 227 (TCC);

A&V Building Solutions Limited v J&B Hopkins Ltd [2024] EWHC 2295 (TCC);

Section 123 of the Insolvency Act 1986 and

Coulson on Construction Adjudication, 4^th edition, at paragraphs 12.08, 12.09 & 12.18.

In respect of the jurisdictional challenge, I derive the following principles:

if a false representation is made, in respect of an asserted conflict of interest when applying to an adjudicator nominating body, the resulting adjudication is invalid and any decision is a nullity due to lack of jurisdiction of the adjudicator;

it is irrelevant whether or not the adjudicator nominating body is deceived by the false representation or not;

it is only if a potential adjudicator has a clear conflict of interest that the nominating body should be warned;

a materially incomplete statement can still be a misrepresentation;

the test for apparent bias is whether a fair-minded and informed observer, having considered all of the circumstances of the assertion that the adjudicator is biased, would conclude that there was a real possibility that the adjudicator is biased;

even if an adjudicator (in relation to the same dispute) has been challenged successfully on the basis of jurisdiction, if the dispute is re-referred to him, that is not sufficient to give rise to apparent bias;

the failure of a party to pay the costs of previous adjudications as directed by an adjudicator is an example of unreasonable and oppressive behaviour. An adjudicator’s decision on allocation of his fees is final even if the decision on the dispute is subsequently overturned;

in order to prove fraud, it is necessary to prove that a false representation has been made, that the representation was made knowingly, or without belief in its truth, or recklessly;

there must be an honest belief in the truth of the representations made to prevent a false statement being fraudulent.

In respect of the application for a stay:

each case turns on its own facts;

special circumstances on the facts are required before it is appropriate to grant a stay;

those facts will include the fact that adjudication and adjudication enforcement are intended to be quick and inexpensive methods to provide temporary results for a winning Claimant;

the probable inability of a Claimant to repay the sum enforced by way of summary judgment on an adjudicator’s award may make it appropriate to grant a stay;

if a Claimant is in insolvent liquidation, a stay of execution will usually be granted;

a stay would not usually be granted if the Claimant’s financial position is the same or similar to its financial position when the contract was made;

a stay would not usually be granted if the Claimant’s financial position is due wholly or in significant part to the Defendants failure to pay the sums awarded by the adjudicator; and

if the evidence shows there is a real risk of a Claimant dissipating or disposing of the adjudication sum to avoid repayment, that would also justify the grant of a stay of execution.