O’Farrell J enforced an adjudicator’s decision, but declined to grant a stay of execution of the judgment pending the outcome of separate CPR 8 proceedings.

The claimant, Structure Consulting Ltd (“SCL”) commenced adjudication proceedings in respect of the validity of a pay less notice. The adjudicator, Mr Seimat Sudaka decided in the claimant’s favour and held that the pay less notice was not complaint with statutory requirements and awarded the sum claimed.

There were two sets of proceedings before the court. Firstly, SCL sought summary judgment to enforce the adjudication decision. Secondly, the defendant, Maroush Food Production Ltd (“Maroush”) issued CPR 8 proceedings to overturn the adjudicator’s decision and sought declaratory relief to determine “whether the contract between the parties was a simple letter of intent agreement or incorporated the JCT Design and Build 2011 conditions of contract”.

Maroush argued that there should be a stay of any judgment against the defendant on the grounds that “the Part 8 claim should be heard with the enforcement application”. Additionally, the defendant argued that “given that the Part 8 claim can be heard very shortly and the sum in dispute is substantial”, it would be fair to stay any enforcement until that matter has been determined. The claimant argued that the issue of contract formation and to a lesser extent the pay less notice should be determined through the Part 7 proceedings with full disclosure and pleadings, witness statements and the ability to cross-examine witnesses.

O’Farrell J held that the issues were sufficiently defined to allow them to be dealt with under Part 8 Proceedings and the issue of whether or not the essential terms of the JCT had been incorporated and agreed would not require lengthy proceedings or complex disclosure.  Interestingly, the Judge considered witness evidence would be required and permitted the parties to call witnesses for cross examination.

O’Farrell J said that “although the court has a discretion to order a general stay pending determination of the Part 8 issue, the general rule is that the court should take a robust approach to the enforcement of adjudication decisions”. The Judge held that this robust approach was adopted by Chadwick LJ in Carillion Construction Ltd v Devonport Royal Dockyard Ltd [2005] EWHC 778 (TCC) must be taken and there were not any special circumstances in this instance which required a stay to be granted. O’Farrell J enforced the adjudication decision but with regard to the defendant’s application for additional time to pay, the Judge ordered to “pay the first £300,000 within 14 days and then to pay the balance within 28 days” as in that case it would not cause undue prejudice and unfairness to Maroush”.

This case demonstrated the increasingly common practice of an unpaid party issuing CPR 7 proceedings to enforce an adjudicator’s decision and a paying party issuing its own CPR 8 proceedings to counter them.