New guidance on challenging an adjudicator’s decision during TCC enforcement (Hutton Construction v Wilson Properties)

In Hutton Construction v Wilson Properties, Coulson J issued guidance superseding the guidance found in the TCC Guide concerning when the court will consider a dispute over an adjudicator’s findings in the course of enforcement by way of TCC summary judgment. Matthew Thorne of 4 Pump Court Chambers considers the judgment and its implications.

This article originally appeared on Lexis®PSL on 20 March 2017. Subscribers can enjoy earlier access and a full-range of related guidance. Click here for a free trial.

What are the practical implications of this case?

Unless the parties agree a consensual approach to resolution of the disputed issue:

• a defendant to a TCC adjudication enforcement must issue a prompt Part 8 claim setting out the declarations it seeks or, at the very least, indicate in a detailed defence and counterclaim to the enforcement claim what it seeks by way of final declarations. The former is the preferred option.
• the defendant must be able to demonstrate that:
  • there is a short, self-contained issue which arose in the adjudication which it continues to contest
  • the issue requires no oral evidence or any other elaboration beyond that which is capable of being provided during the interlocutory hearing set aside for the enforcement

A defendant who unsuccessfully raises this sort of challenge on enforcement will almost certainly have to pay the claimant’s costs of the entire action on an indemnity basis. Conversely, where a claimant does not agree to deal with the issues on enforcement, but the court finds that it does fall within the exception, also runs the risk of cost penalties.

This guidance supersedes that in paragraph 9.4.3 of the TCC Guide.

What were the facts?

The parties entered into a contract dated 12 November 2014 on the JCT Standard Building Contract Without Quantities 2011 form. On 17 August 2016, the claimant served an application for payment. A dispute arose, and the issues in the adjudication were whether there was a valid interim certificate or pay less notice in response. The defendant argued that its pay less notice was an interim certificate, alternatively was a valid and effective pay less notice. The defendant’s case was rejected by the adjudicator.

Following commencement of TCC enforcement proceedings, the defendant raised issues of fact, identified conversations said to be relevant but not raised in the adjud