Harlow & Milner Ltd v Teasdale

Enforcement of an adjudicator’s decision should not ordinarily be stayed merely because related arbitration proceedings are pending. A stay which permits payment to be postponed until the arbitration concludes would undermine statutory adjudication. The court may use the wide case-management powers in the Civil Procedure Rules to abridge the 21-day notice period for making a charging order final where there is no proper opposition and no evidence of prejudice. Alleged negligence by a party’s solicitors does not provide a ground of appeal against the opposing party’s order; any remedy lies separately.

An adjudicator awarded Harlow and Milner approximately £90,000 for building works. The Technology and Construction Court subsequently entered summary judgment and made an interim charging order over the defendant’s property. On 15 March 2006, HHJ Coulson QC made the charging order final, despite notice being three working days short of the period required by the Civil Procedure Rules.

The defendant sought permission to appeal, a stay pending ongoing construction arbitration, and an indirect challenge to an earlier discretionary costs order. She also relied on alleged failures by her solicitors. The central issues were whether the charging order should be stayed, whether the short notice justified an appeal, and whether any other compelling reason existed to grant permission.

1. Disposition. Lord Justice Jonathan Parker held that the proposed appeal had no real prospect of success and that there was no other compelling reason for the Court of Appeal to hear it. The application for permission was refused, and no question of a stay arose.
2. Pending arbitration. The existence of an ongoing construction arbitration did not justify staying enforcement of the adjudicator’s decision. The judge below was entitled to conclude that suspending the charging order until the arbitration ended would undermine the adjudication process by permitting delay.
3. Short notice. The corrected charging order was deemed served on 27 February 2006, leaving three working days fewer than the 21 days required by the Civil Procedure Rules 73.5 paragraph 1. The court held that the judge was fully entitled, and plainly right, to abridge time under the general case-management power in Civil Procedure Rules 3.1 paragraph 2. There was no proper factual ground for opposing finalisation and no evidence of prejudice.
4. Earlier costs order. The defendant had not appealed the 16 January 2006 order making no order as to the costs of the aborted bankruptcy proceedings. There was no application for permission to appeal out of time. In any event, the costs decision was discretionary and disclosed no basis for appellate intervention.
5. Solicitors’ alleged failures. Even if the defendant’s criticisms of her solicitors were justified, failures to deliver a defence or counterclaim or to file evidence would not constitute a ground of appeal against the opposing party. Any negligence claim lay separately against the solicitors.

1. Court of Appeal (Civil Division) — On 3 July 2006, in [2006] EWCA Civ 1002, Lord Justice Jonathan Parker refused permission to appeal and dismissed the application. No stay was granted.
2. Queen’s Bench Division, Technology and Construction Court — HHJ Coulson QC entered summary judgment on 16 January 2006, made no order as to the costs of the aborted bankruptcy proceedings, and made the interim charging order final on 15 March 2006.