Tim Elliott (16 July, page 51) applauds the decision of His Honour Judge Thornton in William Verry Ltd vs North West London Communal Mikrah.
At this enforcement hearing, the unfairness of an adjudicator’s decision was avoided by delaying judgment and allowing the aggrieved responding party the opportunity to bring a fresh adjudication. This judicial footwork may bring a happy ending to this case, but opens up implications for future adjudications.
Current opportunities for challenging an adjudicator’s decision are limited, and for good reason. Those involved in adjudication are aware that adjudicators are only human and will make mistakes. That risk is a price worth paying in return for the benefits it brings. One of those benefits is certainty that an adjudicator’s decision can be enforced without a trip to court. Judge Thornton’s decision was intended to find fairness in the context of a case rather than applying strict enforcement. This appears to be an emerging trend, following Buxton Building Contractors Ltd v Durand Primary School (see Tony Bingham, 7 May 2004, page 50).
This approach may have appeal in individual cases, but the longer-term risk is that aggrieved parties may automatically refuse to comply with decisions in the hope of finding a more sympathetic ear at court. Is this in the interests of the construction industry?
Alistair Day, Taylor Wessing, via email