Westshield Civil Engineering Ltd & Anor v Buckingham Group Contracting Ltd

Proceedings are commenced under the Civil Procedure Rules when the court issues the claim form, not when it is served. Contractual wording requiring proceedings to be commenced therefore refers to issue unless the contract clearly provides otherwise.

A brief claim form may validly refer an adjudicated dispute to court proceedings where it concisely identifies the contractual dispute, the parties’ competing positions and the remedies sought. An adjudicator’s decision on an issue within the adjudicator’s jurisdiction remains enforceable pending final determination, even if it may be wrong in fact or law. A stay of execution will generally be refused where the successful party’s financial position is materially unchanged from that existing when the contract was made, particularly where adequate security is offered.

The claimants sought enforcement of an adjudicator’s decision concerning the valuation of drainage works carried out for the defendant. The adjudicator had jurisdiction to determine whether the relevant subcontractor was Westshield Civil Engineering Ltd or Westshield Ltd and decided that Civil Engineering was the subcontractor and that £505,474.66 was due.

The defendant had issued, but not served, separate proceedings concerning the contract and alleged overpayment. The issues were whether those proceedings had been commenced within the contractual 28-day period, whether the defendant could challenge the adjudicator’s determination of the subcontractor’s identity, and whether execution should be stayed because Civil Engineering was dormant and the companies had financial difficulties.

1. Proceedings commenced. Under CPR Part 7.2, proceedings are started when the court issues the claim form. The Rules distinguish issue from service, and the contractual reference to proceedings being commenced therefore meant issue, not service. Clear and express wording would have been required to give “commenced” the meaning “served”.
2. Sufficiency of claim form. The defendant’s brief details of claim satisfied CPR Part 16.2 and Part 16.3. They identified the dispute over the subcontractor’s identity, alleged overpayments and the remedies sought. The adjudicator’s decision had therefore not become final and binding because court proceedings referring the dispute to the chosen final tribunal had been commenced in time.
3. Adjudicator’s jurisdiction. The parties had agreed that the adjudicator could decide the subcontractor’s identity. Having made that decision, the adjudicator’s determination was enforceable in the enforcement proceedings even if wrong as a matter of fact or law. The defendant could not use approbation and reprobation to reopen an issue which had been submitted to and decided by the adjudicator. The effect of the decision was temporarily binding until final determination.
4. Payment and stay. The contractual adjudication and payment provisions required implementation of the decision without delay, and the adjudicated sum had become due for payment. A stay was refused. Civil Engineering’s dormant status and the companies’ financial difficulties were substantially the same as, or known to be relevant at, the time of contracting. Westshield Ltd’s guarantee further reduced any recovery risk, and the defendant’s tactical conduct was an additional reason against granting a stay.
5. Judgment was entered for Civil Engineering in £147,164.66, with VAT payable only if it was VAT-registered. No final-binding declaration or stay of execution was granted.