In this case, the claimant Equitix brought an action to enforce the decision of an adjudicator against the defendant Bester Generacion. This case is an interesting example of a situation where the court may order a stay of execution heavily influenced by the parties’ position.

Equitix was as an Employer who engaged Bester (Contractor) to design and build the Wrexham Biomass Fired Energy Generating Plant. The progress of the project was slow and Equitix terminated Bester. Equitix commenced two adjudications against Bester. In the first adjudication, the adjudicator found that Bester did not have an entitlement to an Extension of Time (“EoT”). The second adjudication reviewed the validity and monetary entitlement from Equitix’s termination and held that there was a valid termination by Equitix and an entitlement to a sum around £9.8million. Equitix sought to enforce the adjudicator’s second decision in this case.

Bester sought to resist enforcement on two principal grounds. The first ground was that the adjudicator did not have jurisdiction to decide the dispute which had been referred to him as the contract between the parties included works which were excluded from the Housing Grants Construction and Regeneration Act 1996. Coulson J rejected such interpretation of the Act as it would make “nonsense” of the Act “if every preparatory/ancillary operation not expressly identified in section 105(1) became an excluded operation”. Further, the adjudicator’s decision related to the validity of the claimant's termination of the contract with the defendant and the sums due  by way of the Interim Account. As there were no excluded operations prior to the termination of the contract between the parties, Coulson J held that there was no basis for the conclusion that the adjudicator lacked jurisdiction.

The second ground raised by Bester related to the first, whether it had properly reserved its right to argue that the adjudicator lacked jurisdiction to decide the dispute. Coulson J held that no such reservation had been made. Even if Bester’s letter during the first adjudication could be construed as an attempted general reservation, it was inadequate given that a general reservation must be made in “a clear and open way” to be effective. Moreover, Bester made no reservation in respect of the second adjudication. It was held that a party wishing to enter a reservation must enter its reservation in each successive adjudication because “each adjudication is different and the limits of the adjudicator's jurisdiction in each are also different”.

The last issue concerned Bester’s claim for a stay of execution. Although Equitix was held to be entitled to summary judgment in the sum of some £9.8 million, Coulson J ordered Bester to pay £4.5 million, to pay a further £1 million into court, and a stay of execution of the balance (some £4.5 million) until further order by the court. An important factor for such decision was that Equitix had been “much too economical with the information relating to its own financial position”. As a special purpose vehicle, Equitix’s purpose had largely been taken out of it due to lack of progress made on the project and that it had no incentive to remain in existence or to enter the final accounting process. Coulson J concluded that it was “not appropriate” for a party to recover the sum of some £9.8 million by way of an adjudication and then, “in answer to legitimate concerns raised by the other side as to their financial position, effectively stonewall the requests until the last minute and beyond”.