Articles from the Silver Shemmings Ash Team on contractual matters, recent case law changes and items of interest in the construction and property world

Adjudication-related Part 7 and Part 8 application – Willow Corp Sarl v MTD Contractors Ltd

May 3, 2019 | Silver Shemmings

Adjudication-related Part 7 and Part 8 application not to be heard together in Willow Corp Sarl v MTD Contractors Ltd [2019] EWHC 1192 (TCC) (03 May 2019)

In Hutton Construction Ltd v Wilson Properties (London) Ltd [2017] EWHC 517 

(TCC), Coulson J set out how parties should approach adjudication enforcement proceedings, adopting a “broadly consensual approach” to how Part 7 and Part 8 applications. In a departure from that guidance, because of the “unique circumstances” the parties found themselves in here, Fraser J ordered the Part 7 and Part 8 applications to be heard separately, as follows:

  • Part 7 adjudication enforcement hearing listed for 13 May (Waksman J subsequently enforced the third adjudicator’s decision).
  • Part 8 hearing adjourned until Pepperall J has handed down a related reserved judgment. (This concerns the second adjudicator’s decision and involves the construction of certain contract terms: there is said to be “a close degree of linkage” between the two Part 8 applications).

The judge seemed unimpressed with Willow’s reasons for seeking an adjournment (counsel’s unavailability and then awaiting the outcome of the Pepperall J trial). Counsel’s unavailability was “very rarely” a valid reason and not in adjudication enforcement, where matters should be heard promptly. The judge faced an unsatisfactory choice and appeared reluctant to order any departure from Hutton (mainly because of the “ethos of the Act” and the TCC’s policy of dealing with adjudication enforcement speedily). Consequently, he was careful to explain that this should not be seen as a relaxation of the Hutton principles.

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