Citation: [2014] EWHC 3710 (TCC)
Costs were ordered on the indemnity basis against a sub-contractor in respect of its failed application for summary judgment to enforce an adjudication award where the case had been taken out of the norm because there was a strong prima facie case that the adjudicator's appointment had been invalid due to a fraudulent misrepresentation, and where there had been a high degree of unreasonable conduct by the sub-contractor. The court was required to determine costs following the refusal of the claimant sub-contractor's application for summary judgment to enforce an adjudicator's award against the defendant main contractor. The judge held that the defendant had established a sufficiently strong case that the adjudicator's nomination had been invalid because there had been a fraudulent misrepresentation in the nomination form, by those acting on behalf of the claimant, that numerous potential adjudicators had a conflict of interest. The issues were whether (i) costs should be ordered on the indemnity basis; (ii) an issue-based order should be made to reflect the fact that the defendant's natural justice defence had failed. The defendant argued that the claimant's conduct in completing the nomination form, and in failing to respond to its enquiries about the form, was so unreasonable as to justify indemnity costs. The claimant argued that completion of the form was not part of its conduct of the proceedings, there had been no finding of fraud and nothing in its conduct to take the case out of the norm.
Counsel: Fionnuala McCredie QC and Paul Bury appeared on behalf of the Defendant.
Full judgement here.
