Payment obligations in an adjudicator’s decision must be complied with promptly.
I’ve been involved in adjudication since its inception, at the start both preparing adjudication Referrals and Responses and latterly acting as an Adjudicator. Below are some of my thoughts on adjudication.
The recent case of CNO Plant Hire Ltd v Caldwell Construction Ltd EWHC 2188 (TCC) reinforced the principle that adjudicator’s decisions must be enforced promptly, even if a subsequent adjudication reaches a different conclusion. The obligation to comply with an adjudicator’s decision is immediate, regardless of any pending challenges or further adjudications.
In this case the first adjudication was an entitlement for CNO to be paid due to no payment or pay less notice issued by Caldwell. This resulted in an decision in Caldwell’s favour. The second adjudication was a ‘true-value’ one in respect of which the adjudicator decided less was due to CNO. Caldwell subsequently resisted enforcement requesting a set-off of the sum awarded in adjudication 2, from the sum awarded in adjudication 1. However the court rejected Caldwell’s argument, and emphasized that the parties are bound to comply with an adjudicator’s decision until the dispute is resolved through litigation, arbitration or agreement.
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