MTD Contractors Ltd v Willow Corp Sarl

An adjudicator’s decision should ordinarily be enforced by summary judgment while it remains valid and enforceable. The court will not examine whether the decision was substantively correct. A challenge normally succeeds only for matters such as lack of jurisdiction or material breach of natural justice. A pending or prospective challenge to an earlier decision, even if it may later affect the enforceability of the later decision, does not ordinarily create a real prospect of successfully defending enforcement. Nor should payment into court be used as an indirect stay where the circumstances do not justify a stay of execution.

MTD Contractors Limited applied for summary judgment to enforce an adjudicator’s decision requiring Willow Corp SARL to pay £699,695.42, representing the release of the second half of retention monies, together with interest and costs.

Willow had issued a separate Part 8 claim challenging an earlier adjudication decision. Judgment in that challenge was awaited. Willow argued that the earlier decision might be declared unenforceable or a nullity, thereby affecting the later decision because the later adjudicator had relied on findings from the earlier adjudication. The central issue was whether that possible future effect gave Willow a real prospect of defending enforcement or justified withholding judgment pending payment into court.

1. Application granted. Judgment was entered for MTD against Willow for the amounts ordered by the adjudicator. No stay of execution was granted, and enforcement was not conditioned on payment into court.
2. For summary judgment, the claimant had to show that the defendant had no real prospect of successfully defending the claim and that there was no other compelling reason for a trial. Enforcement of adjudication decisions had to be considered in light of the statutory scheme’s purpose of providing rapid interim cash flow.
3. The court would not investigate whether the adjudicator’s decision was substantively correct. The usual grounds for resisting enforcement were narrowly confined, principally lack of jurisdiction or material breach of natural justice.
4. The later decision was presently valid and enforceable. The fact that an earlier decision might subsequently be nullified, and that this might have a knock-on effect on the later decision, did not create a real prospect of a successful defence. That possibility was equivalent in substance to a prospective Part 8 claim or trial which might later produce conclusions inconsistent with the decision being enforced.
5. The reasoning in Energo AS v Bester Generacion UK Ltd [2018] EWHC 1127 supported enforcement of a valid adjudication decision despite a possible later challenge. The same approach applied even though the proposed challenge was framed by reference to jurisdiction or natural justice, where its outcome was unknown and the alleged defect arose from an earlier adjudication.
6. Requiring payment into court would in substance operate as a stay. It would deprive the contractor of immediate payment and could not improve Willow’s position where the circumstances did not justify a stay of execution.