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England and Wales High Court (Technology and Construction Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> Coventry Scaffolding Company (London) Ltd v Lancsville Construction Ltd [2009] EWHC 2995 (TCC) (12 November 2009)
URL: http://www.bailii.org/ew/cases/EWHC/TCC/2009/2995.html
Cite as: [2009] EWHC 2995 (TCC)
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QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
133-137 Fetter Lane London EC4A 1HD |
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B e f o r e :
____________________
| COVENTRY SCAFFOLDING COMPANY (LONDON) LIMITED |
Claimant |
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| - and - |
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| LANCSVILLE CONSTRUCTION LIMITED |
Defendant |
____________________
6th Floor, 12-14 New Fetter Lane, London EC4A 1AG.
Telephone No: 020 7936 6000 Fax No: 020 7427 0093 DX: 410 LDE
Email: info@martenwalshcherer.com
Website: www.martenwalshcherer.com
The Defendant did not appear and was not represented.
____________________
Crown Copyright ©
- In this matter the Claimant subcontractor seeks to enforce an adjudicator's decision which it obtained against the main contractor, Lancsville Construction Limited ("Lansville"). The claim arises out of the provision by the Claimant of scaffolding for works being carried out at Peel House, 105 Regency Street, London SW1P 4AN.
- There were disputes involving delays and entitlements to payments under interim applications and the like, and there have been two adjudication decisions, both from the same adjudicator, Mr Williams. The first adjudication related to a dispute referred by notice dated 3 July 2009. He decided, in effect, matters of principle and that, first of all, the Defendant was in default for failing to pay an interim payment (Stage 5). He also declared what the total value was in relation to that application, namely £121,554.05. He ordered the parties each to pay half of his fees.
- The second adjudication related to a dispute as to whether the amount being declared to be due in the preceding adjudication should be paid. I summarise briefly and generally what this second dispute related to. Mr Williams decided that Lancsville, was obliged to make payment of £57,876.13 under not only Stage 5 but also Stage 7, which formed part of the dispute referred to him in the second adjudication. Interest was payable also, and he made an order about his fees in relation to the second decision.
- So far as both adjudication decisions are concerned, neither has been honoured by the Defendant. So far as the first adjudication is concerned, the only financial part of the decision that needed to be honoured was the payment of half of the adjudicator's fees. Lancsville did not pay. So far as the second decision is concerned, again, Lancsville did not pay the sums directed by the adjudicator to be paid, either by way of principal sums, interest or costs.
- The first decision was reached on 5 August 2009 and the second on 30 September 2009.
- The Claimant issued proceedings on 20 October 2009 in this Court. Following the practice recommended by the TCC Guide, the Claimant through its solicitors immediately sought directions to bring on this summary judgment application promptly.
- So it was that, on 21 October 2009, Ramsay J issued directions, which are very much in standard form for summary judgment applications, including those for the enforcement of an adjudicator's decision. It was ordered that the Claimant's solicitors should as soon as practicable serve upon the Defendant a Claim Form and response pack with the order, with the Claimant's summary judgment application and evidence in support. He then ordered that the time for the Defendant to file an Acknowledgment of Service was to be abridged to five days from the usual 14 days. A hearing date for the summary judgment application was fixed for today's date and orders were made which enabled the parties to serve further evidence. The Claimant's solicitor was to file thereafter a paginated bundle containing all the relevant documents for the hearing of a contested application. In this case, that was to be no later than 4pm on 10 November, two days before. Skeleton arguments were to be served no later than 2pm on 11 November 2009, and the parties were each given permission to apply to the Court on 48 hours' written notice for the other to seek to set aside or vary those directions.
- Those orders were complied with by the Claimant, and I have received today copies of formal certificates of service and evidence of service which have been lodged with the Court. The certificate of service from the Claimant's solicitors confirms that, on 23 October 2009, the requisite claim documentation and other documentation were served on the registered office of the Defendant company, which was also one of its main places of business.
- There has been lodged no Acknowledgment of Service and there has been lodged no documentation, evidence or skeleton argument on the part of the Defendant. I have been told, quite properly, that there has been some communication of a without prejudice nature, at least recently, although of course I have not been told what has been said. But it does seem clear that the Defendant is aware of this hearing.
- The evidence and indeed the skeleton argument of the Claimant's Counsel reveal that these appear to be effective and enforceable adjudication decisions. No ground has obviously or at all been advanced by the Defendant as to why these adjudication decisions should not be enforced by this Court. Usually, the only grounds for objection are that the adjudicator either did not have jurisdiction in whole or in part or that the adjudicator has failed to apply the rules of natural justice. I have seen no evidence or suggestion that any such challenge, even if made, would be a good one.
- In those circumstances, and in line with numerous authorities, it is clear that these decisions are enforceable, should be enforced and there should be judgment for the Claimant in the sums claimed by them. Those sums are summarised in the amended Paragraph 22 of the Claimant's Counsel's skeleton submissions.
- In general terms, I would say this to be of assistance to practitioners who come to the Court to seek to enforce adjudicators' decisions in circumstances where a defendant does not actively or at all participate in the process. I hasten to say that I have discussed this with Ramsay J, although not the facts of this case.
- When it becomes clear that it is likely that a defendant is not going to participate for one reason or another, or indeed for no obvious reason, then a claimant should consider carefully the desirability of proceeding by way of obtaining a judgment in default. The fact that the time for the lodging of the Acknowledgment of Service is abridged to five days (or such other period as the Court may order) does not mean that a claimant cannot obtain judgment in default of the filing of the Acknowledgment of Service, when that abridged time has elapsed. Once it is clear that there has been service of the Claim Form and the other documents called for by the TCC's order, there is no procedural reason why judgment in default should not be obtained.
- Of course, if an Acknowledgment of Service is lodged before any judgment in default is obtained, then matters may have to proceed along the usual course, but the TCC would encourage claimants and those advising them to apply administratively for judgment in default, where the Acknowledgement is not served within any abridged time. The main reasons are obviously to do with costs and Court listing. So far as costs are concerned, there should be in many cases a significant saving of costs to a claimant, and that has got to be in a claimant's interest, particularly in circumstances where a defendant is in financial difficulties. I emphasise that I do not know whether the Defendant in this case is in peculiar financial difficulties. The other saving is in the Court's time, because it will then be possible for other matters to be listed for the time when the hearing has been listed by order once that date is vacated following a judgment in default.
- It is not only in terms of the Court's time and a claimant's costs, but there is another saving. So far as a defendant is concerned, if that defendant is in financial difficulties and is going to be unable to pay, then it perhaps matters not. But, if there is a good reason why the Acknowledgment of Service has not been filed, then of course a defendant is protected by such rights as it has to apply to the Court to have the judgement in default set aside.
- The other step which a claimant can take to save time and money is, where it becomes very clear that the defendant, although it may or may not have put in an Acknowledgement of Service, is unlikely to participate in any hearing, an application on notice to the defendant can be made to bring forward the hearing; the advantage is that less time may be needed, costs will be reduced, court time will be saved and the claimant will get its judgement quicker
- I trust that this will be of some general assistance to solicitors, counsel and parties in cases such as this.
- I hasten to say that I am not in any way implying or inferring, let alone expressing, any criticism of the Claimant's solicitors, the Claimant or its Counsel in this case because they have followed a practice which has been one which has broadly been acceptable to the Court in the past. Perhaps my general comments have been initiated to reflect the fact that during the current economic recession the number of claimants seeking to enforce adjudication decisions in this Court has run up by a very substantial amount and the TCC is anxious, if at all possible, to save costs and time for all concerned in the future.
Mr Justice Akenhead :