WRW Construction Ltd v Datblygau Davies Developments Ltd

An adjudicator’s valuation may be temporarily binding even where the adjudicator lacked jurisdiction to order payment to the responding party. The court may enforce that valuation by ordering payment of the balance due, without requiring a further adjudication. Such enforcement does not finally determine the underlying account or cause the parties’ repayment claims to merge. A stay of execution requires persuasive evidence of a very real risk that the judgment sum will not be repaid. The burden lies on the party seeking the stay, and the court must give weight to adjudication’s purpose of maintaining cash flow.

The claimant sought summary judgment under Part 24 to enforce the revised decision of an adjudicator concerning the post-termination final account under a JCT 2011 Design and Build contract. The adjudicator valued the account as showing a debt of £568,597.32 due from the defendant to the claimant, but expressed the payment remedy in opaque negative terms. The defendant accepted that the valuation was within jurisdiction but argued that payment required a further adjudication and that enforcement would cause merger or finally determine the account. It also sought a stay of execution and challenged the court fee.

1. Summary judgment. The claimant’s application succeeded. Under Part 24, the claimant had to show that there was no reasonably arguable defence. The valuation exercise under clause 8.7 was valid and temporarily binding, and established a balance due to the claimant.
2. Enforcement of valuation. The adjudicator lacked jurisdiction to order payment to the responding party. That did not prevent the court from enforcing the valid valuation by ordering payment of the sum due as its consequence. Requiring a further adjudication, to which there was no defence, would be contrary to principle and established authority.
3. Merger. The doctrine of merger did not apply. An adjudicator’s award was not a judicial decision. The only cause of action capable of being enforced was the contractual obligation to comply with the temporarily binding decision. Any later claim by the defendant to recover overpayments would arise from a different cause of action and would not be finally determined by the enforcement order.
4. Stay of execution. Applying the principles in Wimbledon Construction Co (2000) v. Vago [2005] EWHC 1086 and the further principles cited in Broseley London v. Prime Asset Management [2020] EWHC 944 (TCC), the defendant had to establish a very real risk of future non-payment. The evidence did not do so. The claimant’s financial evidence was preferred, and the defendant had not commenced proceedings to reopen the valuation. The stay was dismissed.
5. The court fee was correctly generated for enforcement of an adjudicator’s award. The defendant’s fee application was dismissed.

First-instance decision. No prior appellate decision was stated in the judgment.