How Do I Make the Losing Party Pay an Adjudicator’s Decision
Enforcing an Adjudicator’s Decision
A successful party in an adjudication may still need to take court action if the losing party does not comply with the Adjudicator’s decision (for example, if they do not pay the sum decided to be due).
Enforcement proceedings are brought in the Technology and Construction Court (TCC). The court will generally enforce an Adjudicator’s decision, unless the Adjudicator plainly lacked jurisdiction or there was a material breach of the rules of natural justice.
For more details on how to resist enforcement of an Adjudicator’s decision, click here.
Part 7 or Part 8?
The correct court procedure depends on what the Adjudicator ordered.
Where the decision requires the payment of money, the winning party should issue a claim under CPR Part 7 and, at the same time, make an application for summary judgment under CPR Part 24.
Where the Adjudicator ordered something other than payment (such as an extension of time) the winning party should instead issue a CPR Part 8 claim, seeking an appropriate declaration from the court.
Documents Required
For enforcement of a money award, the winning party should lodge several documents with the TCC, including:
a claim form and particulars of claim, setting out the Adjudicator’s decision and the relief requested;
an application notice (N244) seeking summary judgment and asking the court to shorten the normal time available for the defendant to respond; and
a witness statement supporting the claim and application.
The documents should be marked:
“paper without notice adjudication enforcement claim and application for the urgent attention of a TCC judge”.
Directions from the Court
The enforcement procedure is designed to move relatively quickly. A TCC judge will generally consider the documents referred to above within three working days before giving directions which concern things like:
the deadline for the defendant to acknowledge service;
the deadline for the losing party’s evidence; and
the date of the substantive hearing.
The hearing will usually be fixed for six to eight weeks after the directions order.
If the losing party fails to acknowledge service of the claim and summary judgment application, the winning party can apply for judgment in default of acknowledgement of service.
If the losing party acknowledges service but then states that it will take no further part in the proceedings, the winning party may wish to apply to the court to have the hearing brought forward.
In reality, administrative delays in dealing with applications for judgment in default, or for bringing the hearing forward, can mean that the six to eight weeks is over by the time that any such applications are dealt with. Therefore, it is often better to await the enforcement hearing than to try and speed things up.
The Enforcement Hearing
The enforcement hearing will normally be listed for a half day, and take a couple of hours. More complex cases may be listed for a full day.
At least two working days before the start of the hearing, the parties should send the court an agreed bundle of documents. The TCC will also expect skeleton arguments from the parties:
for a hearing of half a day or less, the skeleton should be provided by 1.00 pm on the last working day before the hearing;
for a hearing of more than half a day, the skeleton should be provided by 4.00 pm one clear working day before the hearing.
In reality, the judges of the TCC like to receive skeletons (and bundles of authorities) in advance of these deadlines. Parties are encouraged to serve then by 16:00 one clear working day before the hearing: so if the hearing is listed for a Friday (as is usually the case), the submission should be made by 16:00 on the Wednesday before.
At the hearing, the TCC will decide whether the Adjudicator’s decision should be enforced. Judgment may be given immediately at the hearing, or subsequently in writing.
Any Part 8 application made by the losing party is likely to be listed alongside the enforcement hearing. Click here for more information.
If you are the winning party in an adjudication, and wish to discuss the possibility of commencing enforcement proceedings, contact Hamshaw today.