The following Construction practice note provides comprehensive and up to date legal information covering:
Produced in association with 4 Pump Court
This Practice Note considers the possibility of using insolvency proceedings to enforce an adjudicator’s decision.
For guidance on the ability of an insolvent party to pursue an adjudication, and enforce an adjudicator’s decision, see Practice Notes: The right to adjudicate—Restrictions and limitations on right to adjudicate and Adjudication—resisting enforcement using a stay of execution—Claimant in liquidation, administration or a CVA.
Insolvency proceedings will rarely be the most efficient or appropriate means of enforcing the decision of an adjudicator. The Technology and Construction Court’s (TCC’s) enforcement procedures are specifically tailored for quick adjudication enforcement, and the test to be applied varies from that which is usually applied in insolvency proceedings.
In Harlow & Milner v Linda Teasdale, the TCC noted (when considering costs incurred in bankruptcy proceedings which had since been withdrawn) that:
it was not easy to understand why the bankruptcy proceedings had been issued. The appropriate way of enforcing the adjudicator's decision was to issue enforcement proceedings in the TCC, which had a procedure expressly tailored by the TCC to allow the prompt and efficient enforcement of adjudicators' decisions
save in exceptional circumstances, the most efficient way of enforcing the adjudicator's decision was by enforcement proceedings in the TCC
other ways of enforcing such decisions (such as, for instance, bankruptcy proceedings) were something of
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