Engie Fabricom UK Ltd v MW High Tech Projects UK Ltd

On an application to enforce an adjudicator’s decision by summary judgment, the respondent need only show a real prospect of success. That means a prospect which is neither false, fanciful nor imaginary. The court must not conduct a mini-trial or decide probability where the issue requires a full evaluation of evidence.

A short point of law or construction may be decided summarily where the necessary evidence is available and the parties have had an adequate opportunity to argue it. Summary judgment should be refused where material documentary or expert evidence remains necessary. The general importance of an issue to an industry is not, by itself, a compelling reason for a trial.

Following a non-binding adjudication on jurisdiction, Engie Fabricom UK Ltd sought summary judgment to enforce an adjudicator’s order requiring MW High Tech Projects UK Ltd to pay sums arising under a sub-contract.

The parties agreed that the sub-contract contained a right to adjudicate only to the extent permitted by the Housing Grants, Construction and Regeneration Act 1996. The central dispute was whether the works fell within the exclusion in section 105(2)(c) for assembly or installation of plant or machinery on a site whose primary activity was, among other things, power generation.

MW High Tech argued that the site’s primary activity was power generation and that the adjudicator therefore lacked jurisdiction. It also submitted that further documentary and technical evidence was required for a proper determination.

1. Application refused. Summary judgment was refused, conditional on MW High Tech paying £41,766.30 into court within 21 days. Directions for trial were invited.
2. Under CPR Part 24, the respondent did not have to establish that its jurisdiction argument was correct. It had only to show a real prospect of success, meaning a prospect which was neither false, fanciful nor imaginary. The wording of the EPC contract and sub-contract was consistent only with power generation, and there was a real prospect that the claimant’s reliance on European directives, permits and related material was irrelevant to construing the sub-contract in the context of the Construction Act.
3. The court distinguished the summary judgment inquiry from a trial. The court must consider the merits only so far as necessary to determine whether the case has sufficient merit to proceed. A short point of law or construction may be decided summarily where all necessary evidence is available and the parties have had an adequate opportunity to address it.
4. Those conditions were not satisfied. Further documentary evidence was required, including investment, funding, power-generation and fuel-supply material. Independent technical expert evidence might also assist in determining the primary activity of the site.
5. The importance of the issue to the construction and energy industries was not, without more, a compelling reason for trial. The need for further evidence and argument was sufficient.