City and General ("C&G") purchased a freehold property which was split into 4 plots of land. On 28 March 2000, C&G entered into a profits and losses agreement ("PLA") with Cambridge and Temple. On 19 April, C&G entered into a joint venture agreement ("JVA") with Irish Nationwide, who had initially financed the purchase. C&G subsequently sold plots 1 and 2, which led to a payment to Irish Nationwide in accordance with the terms of the JVA. In addition, payments were also made by C&G to Cambridge and Temple.

C&G engaged Kier to carry out the development of plots 3 and 4. Following a breakdown in relations and a number of extensions of time, Kier commenced an adjudication against C&G, seeking loss and expense as a consequence of the delays. The adjudicator concluded that C&G owed Kier £719,295 by way of loss and expense and sundry items. That sum was not paid by C&G and Kier applied for summary judgment.

This application was heard by Mr Justice Jackson (as he was then) and he pointed out that there was "considerable force" in C&G’s argument that the adjudicator had erred because he had failed to take into account two experts’ reports. However this would not render the decision invalid, and thus summary judgment was granted. Kier sought to enforce the judgment by way of a final charging order, however the charging order was worthless because the market value of the property was less than the amount for which Irish Nationwide held the first charge. Kier thereafter obtained an interim third party debt order against Cambridge and Temple.

Kier now applied to make the interim third party debt orders final relying on the accounts of C&G, and Cambridge and Temple, to demonstrate that Cambridge and Temple owed large sums of money to C&G in accordance with the PLA. C&G cross-applied for a stay of execution of the previous judgment. Kier further submitted that the JVA was not an entire agreement, and that it was partly written and partly oral, and that in those circumstances, subsequent conduct should be examined in order to determine the full terms of the contract. C&G, and Cambridge and Temple contended that, although items in the accounts had been recorded as debts, they were in fact only contingent liabilities, and that no debt would be due to C&G until the final account in respect of the development of the property, and therefore the imminent arbitration on the issue of the final account, had been resolved.

The Judge held that on the evidence, there was no oral agreement that the debts arising out of the profit or loss share would be ascertained and payable on a rolling or annual basis. Further to this, the accounts of C&G and Cambridge and Temple were found to be wholly unreliable as evidence. Therefore any share of the profit or loss between C&G, Cambridge and Temple would not be payable at least until the conclusion of the arbitration which would ascertain the sum due to Kier, if any, under the final account.

The Judge added that it would be inequitable for him to use his discretion to award the final third party debt order. Firstly, Cambridge and Temple would go into insolvent liquidation, and no mechanism could be identified to recover the monies in the imminent arbitration. Lastly, the Judge held that he could not ignore the "elephant in the room", insofar as the judgment of Jackson J was based on an adjudicator’s decision which was temporarily binding and subject to several detailed challenges. The Judge therefore did not make final the third party debt orders and granted the stay of execution.