ICCT Ltd v Pinto

Enforcement of an adjudicator’s decision will ordinarily follow the pay now, litigate later principle. The court will not reconsider the adjudicator’s substantive assessment merely because a party says it was wrong. Enforcement may be resisted on grounds including apparent bias, want of jurisdiction, or a failure to produce a legally recognisable decision.

Where the statutory adjudication scheme does not apply to residential works, the parties may nevertheless create an ad hoc adjudication jurisdiction by fully engaging with the process without reserving their rights. The relevant conduct is assessed objectively. A party’s ignorance of the jurisdictional objection does not prevent waiver. A mere recommendation or nomination of an adjudicator does not establish apparent bias.

The claimant contractor sought summary judgment to enforce an adjudicator’s award for unpaid work and adjudication fees. The defendant employer resisted enforcement on three grounds: lack of jurisdiction because the works concerned a residential dwelling; alleged apparent bias and procedural unfairness; and alleged incoherence or error in the adjudicator’s reasoning.

The adjudicator had found that the parties made an oral day-work contract, that the work had been terminated by the defendant before completion, and that the claimant was entitled to payment. The central issues were whether the parties had submitted to an ad hoc adjudication, whether the adjudicator was apparently biased or had conducted the process unfairly, and whether the alleged defects in reasoning justified refusing enforcement.

1. Disposition. The claimant was entitled to judgment. The defendant had no real prospect of successfully defending enforcement and there was no other compelling reason for a trial.
2. Approach to the merits. On an enforcement application the court does not act as an appellate tribunal or second-guess the adjudicator’s conclusions. The adjudicator’s decision is provisionally binding, subject to later litigation. A disagreement with the factual or legal assessment is insufficient.
3. Jurisdiction. Section 106 of the Act meant that the mandatory statutory adjudication scheme did not apply to these residential works. That did not create a blanket prohibition on adjudication. The parties could agree an ad hoc jurisdiction by fully engaging with the adjudication on its merits without a sufficient reservation of rights. The principle was set out in Promet and applied here. The defendant had participated fully, sought and received extensions, and made substantive submissions. His jurisdiction objection was therefore waived.
4. The waiver question was objective. The defendant’s lack of actual awareness of the residential exception did not prevent waiver, and the adjudicator had no general duty to advise the parties that the statutory scheme might not apply.
5. Bias and natural justice. There was no evidence of a prior relationship or financial connection between the adjudicator and the claimant. A fair-minded observer would not conclude that there was a real possibility of bias. A recommendation or nomination of an adjudicator, without more, would not establish apparent bias. The adjudicator had also permitted the defendant to present his case and extensions had been granted when requested.
6. Reasoning. The adjudicator’s treatment of the technical quotation, the extent of the basement repairs, termination, and the counterclaim was intelligible and addressed the essential dispute. Any disagreement with those conclusions was a merits challenge which could be pursued in later litigation, not a basis for refusing enforcement.