A SNOWBALL'S LIFE
It seems that a chill wind may be blowing through the corridors of adjudication enforcement at the Technology and Construction Court (TCC), writes Kim Franklin. The draught may be descending from the Court of Appeal, or it may have been whisked up by the new broom, Mr Justice Jackson, who has instigated other procedural changes since assuming responsibility for the TCC.
Whatever the cause, there has been a noticeable change in the court's approach to contested applications to enforce adjudicators' decisions.
The chances of successfully resisting such an application may now be likened to those of a snowball in the Devil's own territory. The life story of that snowball reads something like this.
In Macob v Morrison, the first decision under the Housing Grants Act, the court held that an adjudicator's decision would be enforced irrespective of its merits. The TCC introduced procedures for speedy judgments and quickly scotched the idea that a counterclaim could be used to resist enforcement. The snowball's future looked bleak.
Early challenges focused on the adjudicator's jurisdiction, particularly whether there was a 'construction contract' or 'contract in writing' as defined by the act. A more substantial strand of jurisprudence developed on the meaning of 'a dispute'.
In cases such as Fastrack v Morrison, the TCC required claims to have been presented, considered and rejected before they could be said to be disputed, presenting something of a lifeline to the snowball.
Although the Human Rights Act was seen off in Austin Hall v Buckland, the established notions of fairness prevailed within the judiciary, who were loath to enforce decisions that had been reached in breach of the rules of natural justice. Cases such as LAP v Waterman demonstrated the inherent unfairness of finding construction professionals negligent in complex cases decided on untested evidence considered over an unreasonably short time.
Mr Justice Jackson warned against the dangers of referring large final-account claims to adjudication, but the punters didn't listen. The snowball's future seemed secure.
Then, in rapid succession, the Court of Appeal upheld two of Mr Justice Jackson's decisions which appear to have burst the bubble. In AMEC v Secretary of State for Transport it endorsed the judge's distillation of the previous jungle of authority on 'no dispute' into seven propositions, only two of which offered any comfort to the snowball. In Carillion v Devonport it appeared to lose all sympathy for the snowball's cause and concluded that to challenge an adjudicator's decision on the basis of a breach of the rules of natural justice was likely to lead to substantial waste of time and expense.
More recent decisions from the TCC, such as All In One Building v Makers, suggest that henceforth those resisting enforcement will be given short shrift.
Whether these developments are to be welcomed will depend upon your view of the snowball's cause. But, if it is now clear that there is no effective appeal from an adjudicator's decision, good, bad or wildly wrong, disputing parties may well reflect on the wisdom of proceeding down this route in the first place.
Kim Franklin is a barrister and chartered arbitrator at Crown Office chambers in London.
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