Makers were carrying out refurbishment work to flats in Northampton. They engaged All In One under a subcontract dated 22 November 2004. In July 2005 Makers issued a notice of determination on the basis of lack of supervision or insufficient labour on site. All In One claimed that the contract had been repudiated by Makers and submitted a claim. The claim was referred to adjudication and the adjudicator decided that All In One should be paid a sum of money.
Makers sought to challenge the payment on the basis that a dispute had not crystallised at the time that the notice of adjudication was issued. Further, the contract contemplated a two month period for the completion of the final account by Makers, and that time had not passed at the date of the issue of the notice.
Allegations of procedural unfairness and breaches of natural justice were raised in connection with a particular confirmation of verbal instructions. Makers' quantity surveyor gave a sworn statement that he had not signed a specific CVI and that All In One were not on site on that particular day. The adjudicator needed to decide whether the signature on the CVI was a forgery. The adjudicator wished to receive direct evidence from All In One. Shortly after this, the quantity surveyor's sworn statement was purported to be retracted. The adjudicator then received an unsigned statement that the quantity surveyor only produced the statement because his employers had threatened to make him redundant.
Reference
Judge Wilcox considered that by the date on which the notice of adjudication was issued, both parties were clearly in dispute and knew that an account of any monies due and owing needed to be concluded. Suggesting that the account submitted was akin to a final account, and that as a result the contractor should have two months to consider the account was not determinative of whether a dispute had crystallised.
All In One was incorporated in May 2001 and ceased trading in October 2005. The application of the principles in Wimbledon Construction Company (2000) Limited vs Vago led to the conclusion that the stay would not be given. There was no evidence that All In One on receipt of the money from Makers would not continue to trade.
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Postscript
There are two interesting aspect of this case. First, that it is very difficult to defeat an adjudicator's decision on the basis that the claiming party may become insolvent, and so would be unable to pay back any amounts as a result of subsequent proceedings.
Second, the judge's comments in respect of the manner in which the adjudicator made the decision. In respect of one head of claim the adjudicator stated that the claim "had neither been proved, evidenced nor tested". Nonetheless, the adjudicator awarded some money against that head. The judge stated (para. 28):
"It is a matter of some surprise that he contemplated such a decision. If it was not proved he should have dismissed that aspect of the claim. It is for the referring party to pursue and prove his claim".
The issue in respect of fraud and forgery clearly challenged the adjudicator, but the adjudicator was able to and did come to a decision that he had the power to make, and so the decision was enforced.
