Bernard Sport Surfaces Ltd v Astrosoccer4u Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Coulson |
| Judgment Date | 08 September 2017 |
| Neutral Citation | [2017] EWHC 2425 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 08 September 2017 |
| Docket Number | Case No. HT-2017-000207 |
[2017] EWHC 2425 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Rolls Buildings
Mr Justice Coulson
Case No. HT-2017-000207
Mr Owen (instructed by Spearing Waite) appeared on behalf of the Applicant.
Mr Hussein (instructed by Keystone Law) appeared on behalf of the Respondent.
These are two applications by the claimant, Bernhards Sport Surfaces Ltd against Astrosoccer4u Ltd, arising out of a dispute in connection with a football pitch at the Whyteleafe Football Club in Surrey.
The first in time is Bernhards' application to enforce the adjudicator's decision made in July against Astrosoccer4u. The second application is an application by Bernhards to be allowed to continue with the enforcement proceedings as a result of the notice of intention to appoint and administrator which was served after close of business by the defendant on 1 st September 2017.
Although that is the main focus of today's application, it does seem to me that it is sensible by way of background and for the purposes of clarity, to start with the question of the adjudication. It is unnecessary for me to set out the detail of the toing's and froing's in the adjudication itself.
In a decision dated 12 th July, Mr. Blisard, the adjudicator, issued an award in favour of Bernhards in the sum of £175,962.47, inclusive of VAT and interest to 12 th July. The claim in the adjudication was a claim for payment and there was a valid payment notice. It is agreed that there was no pay less notice, accordingly, notwithstanding all the detail which was provided to him, the adjudicator concluded that the claimant, Bernhards, was entitled to the sum claimed.
That is important, because although in subsequent correspondence and, indeed, in subsequent evidence, Astrosoccer4u have referred to alleged defects in the pitch, that was not a matter which they raised by way of a pay less notice, it is therefore, as a matter of law, not a matter which the adjudicator was entitled to consider and it is therefore not, again as a matter of law, something which could interfere with or affect in any way the enforcement of the adjudicator's decision.
I do not know what legal advice Astrosoccer4u had prior to the involvement of Mr. Hussein, but for reasons which I will come to, I have some doubt about the propriety and, wisdom of some of that advice. If Astrosoccer4u had been properly advised at the time of the adjudication or immediately thereafter, they would have known that it was open to them to make a separate claim in respect of any alleged defects in the pitch, but that that did not and could not affect their primary liability to pay the sum found by the adjudicator.
"Pay now and make a separate claim for something that was not in the adjudication" is the mantra the Court of Appeal have made plain this court has to adopt. The decision in Royal Davenport Dockyard v Carillion [2005] is crystal clear on that point. Accordingly, the sum found by the adjudicator is and always was due and payable by Astrosoccer4u to Bernhards.
Accordingly, subject to the question of permission to continue with these proceedings so that that point could be confirmed by the court, there is nothing else left in these proceedings. Accordingly, I then turn to whether or not I should permit these proceedings to continue so that judgment for the sum, plainly and obviously can be entered.
My attention has been drawn to my judgment earlier this year in a case called South Coast Construction Limited v Iverson Road Ltd [2017] EHHC 61 (TCC). That case had a number of similarities to this one (and I shall come back to those in a moment). In my judgment I set out the relevant parts of schedule B1 of the Insolvency Act, 1986 and I also identified the relevant principles derivable from the well-known case of Atlantic Computer Systems PLC [1992] CH 505 as well as AES Barry Limited v TXU Europe Energy Trading [2004] EWHC 1757 (Ch) and Ronelf.
Ultimately, the principles are well-known. It is for the party seeking permission to continue who has the burden of demonstrating that that is what the court should do. Questions of proprietary interest are very important, so too are questions of conduct and, so too are what stages the court proceedings have reached.
In that case, I said, because of the nature of adjudication, that proceedings which were issued to enforce the decision of an adjudicator are exceptional because they are proceedings which, in the vast majority of cases, are obviously bound to succeed because of the principles of enforcement to which I have previously referred.
In South Coast, I gave the necessary permission. There were a number of factors which pointed to that. The fact that the proceedings were, effectively, at their end because all that remained was the judgment to enforce; the fact that the decision would not frustrate the administration process: the fact that there was not a risk of undue or unfair preference: and the fact that there had been adjudication proceedings and various aspects of conduct, all pointed towards giving permission.
Mr. Hussein has made very clear and measured remarks as to why at least some of those factors are different here. Save for one (to which I shall return), I do not consider that the factors are different. It does seem to me that all of those same points apply again. There would not be a frustration of the administration process; there had been an...
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Table of cases
...Association Ltd v McCarthy E Fitt Ltd (1979) 15 BLR 27 (CA) III.25.30, III.25.104 Bernard Sport Surfaces Ltd v Astrosoccer4U Ltd [2017] EWHC 2425 (TCC) III.24.33, III.24.120 Bernhard Schulte v Nile Holdings [2004] Lloyd’s Rep 352 III.23.32 Bernhard’s Rugby Landscapes Ltd v Stockley Park Con......
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Statutory adjudication
...going into administration on proceedings brought against it, see Chapter 22. 221 Bernard Sport Surfaces Ltd v Astrosoccer4U Ltd [2017] EWHC 2425 (TCC). 222 It is permissible for a contract to contemplate the parties attempting to agree upon the identity of an adjudicator, or contacting a no......