Volker engaged Holystone to carry out drainage works pursuant to a NEC3 contract. Volker terminated the subcontract. Holystone challenged the validity of the termination and referred this dispute to adjudication. The adjudicator decided that the termination was valid. Volker then commenced a second adjudication seeking sums due as a consequence of the termination. The second adjudicator found in Volker’s favour.

At enforcement, Holystone relied upon the following 4 points:

1. The adjudicator strayed from the agreed contractual procedure in allowing Volker to submit new material after the agreed deadline for submission of material;
2. The adjudicator allowed Volker to change its pleaded case during the course of the adjudication proceedings and after Holystone had submitted its response.
3. During the adjudication proceedings and before the publication of the adjudicator’s decision, Volker wrongfully made the adjudicator aware that a without prejudice offer of settlement had been made.
4. Even if the above did not render the adjudicator’s decision invalid and unenforceable, enforcement of the decision would render Holystone insolvent.

The Judge enforced the decision as:

The adjudicator did not exceed his jurisdiction in conducting the adjudication process. He was entitled, and obliged, to request further information in order to allow him to answer the question asked properly. Holystone had not stated that they did not have time to deal with the new material.

Volker amended its claim as a result of information in Holystone’s reply. This change reduced the value of the claim and therefore the adjudicator had jurisdiction to deal with it as the notice of adjudication stated that Volker would seek “such sum as the adjudicator determined”. Further Holystone had been given an opportunity to comment on the revised claim.

Holystone had referred to a without prejudice meeting between the parties in its response and correspondence. Volker complained of these references in the adjudication. The adjudication was not biased as a fair-minded and informed observer would not conclude there was a real possibility, or a real danger, that the adjudicator was biased. The adjudicator had noted, prior to becoming aware of the meeting, that many elements of the decision had been decided. In a construction case, generally negotiations would have taken place between the parties, and offers made.

No evidence of Holystone’s possible insolvency or alleged financial difficulties of Volker had been presented and there was no application for a stay of execution. However, even if there was evidence of the possible insolvency, it was irrelevant on enforcement as a losing party could avoid enforcement by simply pleading poverty.