Herschel obtained judgment in respect of their claim for unpaid invoices in the County Court. Judgment was then set aside and Breen given unconditional leave to defend. Prior to their serving a Notice of Appeal, Herschel referred the dispute as to non-payment of invoices to adjudication.

The Judge found that the decision of the Adjudicator was not final and therefore the dispute could be referred to adjudication, although there were ongoing court proceedings. Therefore the Adjudicator’s decision could not give rise to any estoppel. The Parliament decided that a reference to adjudication could be made at “any time” and these words should be given their plain and natural meaning.

In relation to Breen’s argument that Hershel had waived/repudiated the clause providing for dispute resolution, the Judge stated a party must choose whether to refer a dispute as per the contractual obligation or commit a breach of contract and refer the dispute to adjudication. There is no question that “they are not mutually exclusive routes to dispute resolution”.

The Judge declined to grant a stay of execution pending final determination of the County Court proceedings. There was no real prejudice to Breen being required to pay immediately and there was no reason to keep Herschel out of its money any longer. There was no evidence that Herschel would be unable to repay Breen if it lost in the County Court proceedings.