If you have been given a decision by an Adjudicator that awards payment to you but the other party does not comply with the decision within the time scales set down, you may apply to the Court to enforce the decision.
Legal precedent allows for time to be abridged for service of the 'acknowledgment of the service of the claim' and is usually speedily dealt with by the Court.
If you have had an Adjudicators' decision in your favour and are considering Enforcement, we can assist you in the preparation of the Enforcement Documentation and the abatement of time for Service of Defence to your claim making the period for the hearing of your claim condensed into a matter of weeks - not months!
The TCC is ordinarily the court in which the enforcement of an Adjudicator's decision and any other business connected with Adjudication is undertaken. Adjudicator's decisions predominantly arise out of Adjudication's that are governed by the mandatory provisions of the Housing Grants, Construction and Regeneration Act 1996 ("HGCRA"). These provisions apply automatically to any construction contract as defined in the legislation. Some Adjudicators decisions arise out of standard form contracts which contain adjudication provisions, and others arise from ad-hoc agreements to adjudicate. The TCC enforcement procedure is the same for all three kinds of adjudication.
In addition to enforcement applications, declaratory relief is sometimes sought in the TCC at the outset of an Adjudication in respect of matters such as the jurisdiction of the Adjudicator or the validity of the Adjudication. This kind of application is dealt with in Paragraph 1.4 below.
The HGCRA provides for a mandatory 28-day period within which the entire Adjudication prcess must be completed, unless a) the referring party agrees to an additional 14 days, or b) both parties agree to a longer period. In consequence, the TCC has moulded a rapid procedure for enforcing an Adjudication decision that has not been honoured. Other Adjudication proceedings are ordinarily subject to similar rapidity.
Unlike arbitration business, there is neither a practice direction nor a claim form concerned with Adjudication business. The enforcement proceedings normally seek a monetary judgement so that CPR PART 7 proceedings are usually appropriate. However, if the enforcement proceedings are known to raise a question which is unlikely to involve a substantial dispute of fact and no monetary judgement is sought, CPR PART 8 proceedings may be used instead.
The TCC has fashioned a procedure whereby enforcement applications are dealt with promptly. The details of this proceedure are set out below:
The claim form should identify the construction contract, the jurisdiction of the Adjudicator, the procedural rules under which the Adjudication was conducted, the Adjudicators decision, the relief sought and the grounds for seeking the relief.
The claim form should be accompanied by an application notice that sets out the procedural directions that are sought. Commonly, the claimant's applications will seek an abridgement of time for the various procedural steps, and summary judgement under CPR PART 24. The claim form and the application should be accompanied by a witness statement or statements setting out the evidence relied on in support of both the adjudication enforcement claim and the associated procedural application. This evidence should ordinarily include a copy of the Adjudicator's decision.
The claim form, application notice and accompanying documents should be lodged in the appropriate registry or court centre clearly marked as being a "paper without notice adjudication enforcement claim and application for the urgent attention of a TCC judge". The parties will be informed that the enforcement proceedings will be assigned to a named judge. That judge will then manage the proceedings up to and including any hearing. He will ordinarily provide his directions made in connection with the procedural application within 3 working days of the reciept of the application notice at the courts.
The procedural application is dealt with by a TCC judge on paper, without notice. The paper application and the consequent directions should deal with:
1. The abridged period of time in which the defendant is to file an acknowledgement of service;
2. The time for service by the defendant of any witness statement in opposition to the relief being sought;
3. An early return date for the hearing of the summary judgement application and a note of the time required or allowed for that hearing; and
4. Identification of the judgement, order or other relief being sought at the hearing of the Adjudication claim.
The order made at this stage will always give the defendant liberty to apply.
A direction providing for a date by which the claim form, supporting evidence and court order providing for the hearing are to be served on the defendant should ordinarily also be given when the judge deals with the paper procedural application.
The directions will ordinarily provide for an enforcement hearing within 28 days of the directions being made and for the defendant to be given at least 14 days from the date of service for the serving of any evidence in opposition to the Adjudication application. In more straightforward cases, the abridged periods may less.
The claimant should, with the application, provide an estimate of the time needed for the hearing of the application. This estimate will be taken into account by the judge when fixing the date and length of the hearing. The parties should, if possible jointly, communicate any revised time estimate to the court properly and the judge to whom the case has been allocated will consider whether to refix the hearing date or alter the time period that has been allocated for that hearing.
If the parties cannot agree on the date or time fixed for the hearing, a paper application must be made to the judge to whom the hearing has been allocated for directions.
Where there is any dispute to be resolved at the hearing, the judge should be provided with copies of the relevant sections of the HGCRA, the Adjudication procedural rules under which the Adjudication was conducted, the Adjudicator's decision and copies of any Adjudication provisions in the contract underlying the Adjudication.
The parties should lodge, 24 hours before the hearing, a bundle containing the documents that will be required at the hearing, copies of any authorities which are to be relied on and short skeletons summarising their respective contentions as to why the Adjudicator's decision is or is not enforcebale or as to any other relief being sought.
The parties should be ready to address the court on the limited grounds on which a defendant may resist an application seeking to enforce an Adjudicators decision or on which a court may provide any other relief to any party in relation to an Adjudication or an Adjudicator's decision.
As noted above, the TCC will also hear any applications for declaratory relief arising out of the commencement of a disputed Adjudication. Commonly these will concern:
Any such application will be immediately assigned to a named judges. In such circumstances, given the probable urgency of the application, the judge will usually require the parties to attend a CMC within 2 working days of the assignment of the case to him, and he will then give the necessary directions to ensure the speedy resolution of the dispute.
It sometimes happens that one party to an Adjudication commences enforcement proceedings, whilst the other commences proceedings under Part 8, in order to challenge the validity of the Adjudicators award. This duplication effort is unnecessary and it involves the parties in extra costs, especially if the two actions are commenced at different court centres. Accordingly there should be sensible discussions between the parties or their lawyers, in order to agree the appropriate venue and also to agree who shall be claimant and who defendant. All issues raised by each party can and should be raised in asingle action.