Citation: EWHC 1825 (TCC); [2013] CILL 3395; [2013] 28 EG 85; [2013] 163 (7168) NLJ
Nature of case: The Claimant companies, Westshield Civil Engineering (“W1”) and Westshield (“W2”), brought a claim to enforce an adjudicator’s decision, on a dispute between them and Buckingham Group, that Buckingham had underpaid in respect of a completed sub-contract. The identity of the sub-contractor had been in dispute at the adjudication, identified by the adjudicator as W1. Following the adjudication, and without W1 and W2’s knowledge, Buckingham had issued proceedings seeking recovery of overpayments, but did not serve them. The issues were:
1. Had “proceedings” been “commenced” in respect of Buckingham’s issued claim, such as would prevent the adjudicator’s decision becoming final and binding under the adjudication clause?
2. Did the doctrine of approbation / reprobation apply to prevent Buckingham from challenging the adjudicator’s identification of the sub-contractor?
3. Should Buckingham be granted a stay of execution, having regard to Westshield’s financial difficulties? Judgment for the Claimants. Akenhead J answered questions 1 and 2 in the affirmative, and 3 in the negative. It was clear under CPR r.7.2 that proceedings commenced when the Court issued a claim form at the Claimant’s request. There was no need to take a commercially purposive interpretation of the terms used in the adjudication clause, to the effect that “commencement” meant “service”. The doctrine of approbation / reprobation was immaterial in the circumstances, as the adjudicator had decided the issue of the sub-contractor’s identity, and that decision was enforceable even if wrong as a matter of fact or law. Finally, Buckingham had always been aware of the factors demonstrating W1 and W2’s financial difficulties, so no stay would be granted.
