The defendant is main contractor, the claimant is a lighting company. The work comprised the construction of lighting systems in the Millennium Dome. In the course of the works, a dispute arose as to the claimant’s entitlement to payment for works done. An adjudication resulted in an award of a sum to the claimant.

The issue was whether the application for summary judgement should be refused on the grounds that the claimant’s company was merely set up as a fraudulent vehicle. In this respect, the defendant alleged that one of their senior official employees responsible for the lighting works was, at the same time and in fraudulent intention, owner, operator, manager, supervisor and executive of the claimant’s company. The defendant maintained the employee had conspired with other persons to create the company in order to carry out work on the Dome.

Given that counsel for the claimant was not in the position to comment on the defendant’s case but to rebut the allegations, HHJ Mackay found it clear to him that if the defendant’s case was correct, then the court would be advancing monies to the claimants brought about and created by the said unlawful and fraudulent conspiracy. The court said it was not merely a question of burden of proof, but a question of doing justice. Having no implication or cogent evidence to the contrary, HHJ Mackay found the court was compelled to refuse immediate summary judgement. However, he mentioned the possibility that, in future, judgement in favour of the claimants might be obtained.