WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.
No. HT-2018-000198
Neutral Citation Number: [2018] EWHC 2629 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
BUSINESS AND PROPERTY COURTS
TECHNOLOGY & CONSTRUCTION 
COURT
	
Royal Courts of Justice
Wednesday, 29 August 2018

Before:

MRS JUSTICE JEFFORD

- - - - - - - - - - - - - - - - - -

B E T W E E N :

ASSESMONT LTD	Claimant

-  and  -

	BROOKVEX IMS LTD	Defendant
	
- - - - - - - - - - - - - - - - - -

MR FRAMPTON  (instructed by Birkett Long LLP) appeared on behalf of the Claimant.

MR TOWERS  (instructed by Wright Hassall LLP) appeared on behalf of the Defendant.

- - - - - - - - - - - - - - - - - -

Transcribed by Opus 2 International Ltd.
(Incorporating Beverley F. Nunnery & Co.)
Official Court Reporters and Audio Transcribers
5 New Street Square, London EC4A 3BF
Tel:  020 7831 5627     Fax:  020 7831 7737
civil@opus2.digital

This transcript has been approved by the Judge

- - - - - - - - - - - - - - - - - -

J U D G M E N T

This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.

MRS JUSTICE JEFFORD:

Introduction

1	This is an application for summary judgment to enforce the decision of an adjudicator, made on 25 June 2018, that the defendant, Brookvex, pay to the claimant, Assesmont, the sum of £59,763.11 plus VAT.
  
2	It is not in issue that there was a contract between the parties for the carrying out of works at a property known as Apollo House in Croydon.  The contract was formed by a quotation from Assesmont to Brookvex on 29 November 2017 to carry out a steel work to over-clad four columns.  The total sum in the quotation was approximately £17,000 plus VAT.  The quotation contained, amongst other things, the identification of a day works rate at £390 per person per day including an eight‑hour working day on site, travel time and expenses, tools and equipment.  

3	There was a clause in the quotation clause 14 which stated that installation costs were based on normal weekday site working hours being Monday to Friday between 7.30 and 17.30.  If restricted working hours on site reduced those working hours, there was  provision for additional payment. The clause then provided: 

“If Saturday works required, please allow an additional £17.50 per hour, Sunday works an additional £35.00 per hour”.  

4	The quotation was accepted by Brookvex.  It is not in issue that that formed a contract and that the Scheme applied to that contract.  In the event, Assesmont carried out more work than was expressly provided for in the quotation.  

5	On 27 February 2018, Assesmont submitted its final account application in the sum   of £71,716.33.  The response of Brookvex to that was an email from Mr Harrald, the Operations Director of Brookvex writing to a Mr Hiscott of Assesmont in the following terms:

“Please can you send me the information requested at the meeting and in 2 previous emails as we are unable to work out the costs you are claiming for the lower columns [which formed part of the additional work].  We still require the original day sheets as you have previously sent copies plus the operatives need to be named on the Assesmont day work spreadsheet”.  

He said that he attached a previous email and he asked:

“Can you also provide the qualifications for all the operatives you claim were on site as over half of the sheets you have sent which we do not accept have a number of operatives only”.  

That request for further information was the response to the final account. There was   no pay less notice 

The Adjudication

6	Assesmont gave notice of intention to refer on 17 May 2018.  Brookvex participated in the adjudication without any reservation as to the jurisdiction of the adjudicator.  In its response in the adjudication, Brookvex’s case was that there were two sets of work, “the upper works” which were the subject matter of the quotation, and “the lower works” for which no quotation had ever been provided despite Brookvex’s request.  Brookvex said that the lower works had, therefore, been carried out without a price being agreed and that Assesmont was entitled to payment on a quantum meruit basis.  They asked the adjudicator either to give directions for the appointment of a surveyor to value the works or to do so himself.  That response did not take account of the arguments as to the payment notice and pay less notice (or lack of one).  The adjudicator did not take the course asked of him but decided the dispute before him solely on the basis of the notices or lack of them. 
 
The jurisdictional issues

7	In these proceedings, Brookvex has served a defence and counterclaim, dated 6 August 2018, and three witness statements: one from Mr Michael Davidson, Director and CEO of Brookvex; one from Mr Graham Sinclair, Construction Site Manager; and one from Mr Gary Harrald.  Those witness statements were also signed on 6 August 2018.  

8	The argument now advanced in the defence and counterclaim and in those statements is that there were not merely two sets of work which ought to have been valued differently, but that there were two distinct contracts and that there ought, therefore, to have been two distinct payment applications.  That argument may have developed into an argument that the adjudicator lacked jurisdiction under the second contract for the lower works. 

9	The adjudicator’s decision was based on the absence of a pay less notice and Brookvex’s position now appeared to be that there did not need to be one in respect of the lower works because there was no valid payment notice under the separate contract for these works.  However, no such jurisdictional objection was taken at the time of adjudication. On the contrary, the adjudicator had been asked to deal with the lower works.  It is well established that a jurisdictional objection must be taken promptly and it is far too late to raise these issues on enforcement.  Indeed, these matters have not, in the event, been pursued on the application before me today.  

10	Both parties recognise that there are some limited instances where on enforcement the court may decide discrete and short points which go to the substance of the adjudicator’s decision and that such points may include those where there is an issue of whether a document is, for example, a valid pay less notice.  The purpose of taking that approach is to avoid a multiplicity of proceedings where the point is of a nature that could be raised in Part 8 proceedings and dealt with shortly.  

11	There was or had been something of a flowering of cases in which the court was invited to reach such decisions on the substance of an adjudicator’s decision on enforcement proceedings.  In Hutton v Wilson [2017] EWHC 517 (TCC), Coulson J. as he then was, took the opportunity to set down some principles or at least to revisit and restate some principles. He identified two narrow exceptions where the court would consider the substance of an adjudicator’s decision.  The first, which I take from paragraph 4 of his judgment, involved an admitted error and the second, which I take from paragraph 5, concerned the proper timing, categorisation or description of the relevant application for payment, payment notice, or pay less notice.

12	The instances in which such defences might be dealt with, with or without the formal issuing of a Part 8 claim, were those where, as Coulson J. said at paragraph 17:

“... the defendant must be able to demonstrate that:

(a)  there is a short and self‑contained issue which arose in the adjudication and which the defendant continues to contest; 
(b)  that issue requires no oral evidence, or any other elaboration beyond that which is capable of being provided during the interlocutory hearing set aside for the enforcement; 
(c)  the issue is one which, on a summary judgment application, it would be unconscionable for the court to ignore”.

He continued at paragraph 18: 

“What that means in practice is, for example, that the adjudicator’s construction of a contract clause is beyond any rational justification, or that the adjudicator’s calculation of the relevant time periods is obviously wrong, or that the adjudicator’s categorisation of a document as, say, a payment notice when, on any view, it was not capable of being described as such a document [was wrong].  In a disputed case, anything less would be contrary to the principles set out in Macob, Bouygues and Carillion”.

“19. It is axiomatic that such an issue could still only be considered by the court on enforcement if the consequences of the issue raised by the defendant were clear‑cut.”

13	Mr Towers accepts that this case does not fall within the ambit of what Coulson J. had in mind and that the issue of whether there were two separate contracts and the impact on the payment regime is one that cannot be resolved on a summary judgment application.  That was, as I said in the course of argument, a proper concession and, had it not been made, that is what I would, in any event, have found to be the case.

The allegations of fraud: the law

14	Brookvex, therefore, pin their colours to a rather different mast, namely the allegation made for the first time on the enforcement proceedings that Assesmont’s claim on the underlying final account is fraudulent.  

15	The relevance of fraud to enforcement proceedings has been the subject of a recent statement of principle or again, to a large extent, restatement of principle by Fraser J. in the case of Gosvenor London Limited v Aygun Aluminium UK Ltd [2018] EWHC 227 TCC.  

16	In that case, Fraser J. undertook a thorough and comprehensive review of the relevant authority.  He started with the decision of Akenhead J. in SG South Ltd v Kings Head Cirencester [2010] BLR 47.  In that case, Akenhead J. set out some basic propositions that, as he said, can properly be formulated in the context of adjudication enforcement.  Those propositions were as follows: 

“20….(a)  Fraud or deceit can be raised as a defence in adjudications provided that it is a real defence to whatever the claims are; obviously, it is open to parties in adjudication to argue that the other party’s witnesses are not credible by reason of fraudulent or dishonest behaviour. 

(b)  If fraud is to be raised in an effort to avoid enforcement or to support an application to stay execution of the enforcement judgment, it must be supported by clear and unambiguous evidence and argument.

(c)  A distinction has to be made between fraudulent behaviour, acts or omissions which were or could have been raised as a defence in the adjudication and such behaviour, acts or omissions which neither were nor could reasonably have been raised but which emerge afterwards.  In the former case, if the behaviour, acts or omissions are in effect adjudicated upon, the decision without more is enforceable.  In the latter case, it is possible that it can be raised but generally not in the former.

(d)  Addressing this latter case, one needs to differentiate between fraud which directly impacts upon the subject matter of the decision and that which is independent of it.”

17	He then gave as an example of the first category - that is a fraud which directly impacts on the subject matter - the situation where a certificate upon which the adjudication decision was based is discovered to have been issued by a certifier who has been bribed or fraudulently misled.  As Fraser J. said in Gosvenor, that case and the principles there set out have been applied and followed in the further decisions of Ramsey J. in GPS Marine Contractors Ltd [2010] BLR 377 and in Speymill Contracts Limited v Bashind [2010] EWCA Civ 120, a decision of the Court of Appeal.

18	In that last case, Jackson LJ made clear that he agreed with the second of Akenhead J’s propositions, namely that if fraud was to be raised in an effort to avoid enforcement or to support an application to stay execution of the enforcement judgment, it must be supported by clear and unambiguous evidence and argument.  In Gosvenor, Fraser J. considered that this must mean, therefore, that fraud can potentially be relevant to an application to stay execution as well as enforcement. Whilst that might, he said, appear to be stating the obvious, it was a subject that he would return to, and so will I.

19	At paragraph 19 of his judgment Fraser J continued:

“The policy considerations in respect of the temporary finality of adjudication decisions have been well ventilated elsewhere in many cases.  The policy considerations in respect of the approach of the courts to allegations of fraud on enforcement are similar, but also include not allowing parties ‘a second bite of the cherry’ if such allegations could have been raised before the adjudicator”.

The context in which Fraser J. said he might be stating the obvious was that of a stay of execution.  I have said I would also return to that point and it is convenient to do so at this stage.  Later in the Gosvenor judgment, Fraser J. quoted from the decision of His Honour Judge Coulson QC, as he then was, in Wimbledon Construction Co 2000 Limited v Vago [2005] EWHC 1086 (TCC). In that case the judge drew together the principles from a number of authorities on applications for a stay of execution in the context of adjudication.  He started by making the points that adjudication was designed to be a quick and inexpensive method of arriving at a temporary decision on a construction dispute and that in consequence adjudicators’ decisions were intended to be enforced summarily so that the claimant should not be kept out of his money. 

20	He then said at sub‑paragraph 26 (c):

“In an application to stay the execution of summary judgment arising out of an Adjudicator’s decision, the Court must exercise its discretion under Order 47 ...  

... with considerations a) and b) firmly in mind.  

(d)  The probable inability of the claimant to repay the judgment sum (awarded by the Adjudicator and enforced by way of summary judgment) at the end of the substantive trial ... may constitute special circumstances…rendering it appropriate to grant a stay”.  

He then went on to consider particular matters relating to a claimant’s financial position in sub-paragraphs (e) and (f)

21	In Gosvenor, having considered the subsequent authorities and the position in the case before him, Fraser J. continued at paragraph 39 of his judgment:

“Accordingly, in my judgment, a further principle should be added to those in the Wimbledon Construction Company 2000 Limited case and I expressed myself in these terms in the first draft judgment.  I expressed in that draft that in my judgment, the principles set out in the Wimbledon Construction Company 2000 Limited case should have added to them a further one”.  

That further principle he made sub‑paragraph (g) following the numbering in the Wimbledon decision, and (g) was in these terms:

“If the evidence demonstrates that there is a real risk that any judgment would go unsatisfied by reason of the claimant organising its financial affairs with the purpose of dissipating or disposing of the adjudication sum so that it would not be available to be repaid, then this would also justify the grant of a stay”.  

22	In the Gosvenor case, Fraser J. applied that principle and considered that the facts of the case before him fell within it.  In doing so, he took into account the serious allegations of fraud which had been made against the claimant to which there had, somewhat surprisingly, initially been no response at all and discrepancies in the accounts that had been put before him which had either not been explained or had been the subject of an explanation which he had considered to be improbable and had subsequently been told was wrong.   

The allegations of fraud: the facts

23	Mr Towers very fairly concedes that on enforcement he has, in the light of this and other decisions, a significant hurdle to overcome, namely that the issue of fraud could and should have been raised in adjudication.  Although Mr Frampton submits that the issue did not go to directly to the issue of the validity of the payment notice, it seems to me that if the defendant’s case is that the final account claim was fraudulent, then his case must also be that the application was fraudulent.

24	The only explanation that can be offered by Mr Towers and those instructing him (who played no active part in the adjudication) for the failure to raise the issue in the adjudication was the incompetence of the solicitors then instructed.  That is a matter which Mr Towers seeks to infer from the response in the adjudication which did not grapple at all with the validity of the payment notice and the absence of a pay less notice, but only with the valuation of the additional works.

25	The alleged fraud was relevant to that very issue, that is the valuation of the additional works, and it was still not raised.  In my view, the matter should be taken as having been decided in the adjudication because it could have been but was not raised.  On that basis, the allegations of fraud are not relevant to the enforcement of the adjudicator’s decision (following Akenhead J’s principle (c)) but only relevant to the question of whether there should be a stay of execution. 

26	If I am wrong about that, it would be an example, to my mind, where the alleged fraud, although it did not directly impact on the subject matter of the adjudication, was not entirely independent of it.  That is somewhere between the two extremes in sub‑paragraph (d) of the principles set out in the SG South case. It seems to me that it would be open to me to consider, on that basis, whether or not to enforce the adjudicator’s decision because to do so might , as Mr Towers put it, be to lend the court’s support to fraud. But that would only be the case if the evidence of fraud was clear and unambiguous.  

27	In both cases, that is if, contrary to my view, the fraud is relevant to the granting of summary judgment and in any case, in relation to the stay, the central issue on this application, therefore, is whether there is clear and unambiguous evidence of fraud.  

28	I will come in a moment to the way in which that case is pleaded in the defence, but I will start with the evidence that has been served on this application.  Mr Harrald’s evidence is not concerned specifically with the allegations of fraud.  Mr Davidson gives some evidence about fraud, but the main evidence is that of Mr Sinclair.  His evidence amounts to this:  Assesmont subcontracted work on site to a firm called TMT.  There appears on the material before me to be an issue as to whether Brookvex knew about this, but that is not relevant in the present context.  TMT presented Mr Sinclair with time sheets to sign.  He, Mr Sinclair, did not have authority to agree levels of labour on site and was not signing the time sheets as approval for payment.  He believes that on one of the time sheets what purports to be his signature is not.  On a couple of time sheets his signature does not “look right”.  On a couple of time sheets the word ‘guys’ is used, which is an expression he says he does not use.  Four time sheets do not match his diary entries as to the numbers of men on site, and a number of time sheets are annotated to indicate time and a half which Mr Sinclair says he would not do and is not responsible for authorising.

29	Against that background, I will turn to the pleaded allegations.  They are set out at paragraph 16 of the Defence which starts with the averral that the claimant has falsely invoiced for labour charges.  

30	The first Particular of Fraud is that the claimant has produced 21 day sheets titled “Assesmont Handover Customer Satisfaction Form” which purport to record the number of operatives deployed each day for work done and a sign-off by Mr Graham Sinclair.  It is not entirely clear whether there were 21 or 22 day sheets in total, but in any case, Mr Frampton was plainly right in his submission that this is not itself an allegation of fraud. It is, if anything, simply background to the allegations that are then made in respect of the day sheets.  It has, however, this importance, namely that it is, on that pleaded basis, the defendant’s case that there were 21 day sheets, yet, as will be seen, doubt is cast on the veracity or authenticity of only a limited number of daysheets.
31	Sub‑paragraph (ii) of the Particulars of Fraud alleges that the day sheet dated 22 December 2017 contains a forgery of Mr Sinclair’s signature, and it is averred that other signatures require forensic handwriting examination of the originals which the defendant believes will establish further forgeries, the documents seen being scanned photocopies only.  That is, in the way the case has been put before me, a crucial allegation because it is said that the allegation of forgery takes this matter beyond what might otherwise be thought to be a series of allegations of inaccuracies in the time sheets.

32	Although there is a positive averral that the day sheets contain a forgery of Mr Sinclair’s signature, his own evidence does not go so far as a positive assertion of forgery and nor does Mr Sinclair or the defendant offer any other reason for thinking that the signature is a forgery.  For example, if it were the case that Mr Sinclair had been away, sick or otherwise indisposed, for the entirety of the week when that time sheet had been produced, it might cast further doubt on the authenticity of the signature, but there is nothing of that nature at all.

33	The time sheet for 22 December 2017 states that there were “6 Guys” and also contains a reference to 8 hours.  On 21 December 2017, in an email timed at 6.09 pm, from Mr Hiscott of Assesmont to Mr Sinclair and also Mr Honey, Mr Hiscott said that, further to his telephone conversation with Mr Sinclair, he confirmed a verbal instruction to supply six operatives at Apollo House tomorrow.  He said he would collate the day rate to be charged and inform Mr Sinclair via email.  Mr Honey, from whom there is no evidence, is the gentleman who, in the defendant’s witness statements, is said to have been the person who would have had authority to order additional labour on site.  The point about that email, as Mr Frampton submits, is that it indicates that, the day before the time sheet referring to “6 Guys” and on which Mr Sinclair’s signature is alleged to be forged, Assesmont had been asked to provide six operatives on site.  There is certainly no response to that email disputing that that was the request that had been made.  Further, Mr Sinclair’s diary for the same date, which puts to bed any suggestion that he might, for example, not have been around at the time, also records the presence on site of six operatives.  

34	This is one instance where the word “guys” is used on the time sheet.  The evidence about this is, to my mind, unsatisfactory.  Mr Sinclair says that time sheets were presented to him for signature.  That implies that they were filled out by the subcontractor and that he was then asked to approve them, not that he completed them. In that case I cannot see the relevance attached to the use of the word “guys” which is not Mr Sinclair’s word.  There is, in any case, evidence of at least one email in which Mr Sinclair has described operatives on site as “guys”.

35	Sub‑paragraph (iii), under the Particulars of Fraud, alleges that day sheets stating “time and a half” have been falsified after the event by the addition of that phrase relating to the charges for labour purportedly signed and approved by Mr Graham Sinclair.  I agree with Mr Towers’ submission that the contract does not strictly provide for payment at time and a half.  It provides, in the passage that I read from clause 14, for the payment of additional hourly sums if work is carried out on a Saturday and a Sunday.  However, it is not difficult to see how somebody might, for shorthand, refer to that as time and a half.  

36	If the references to time and a half were added by others, that would not necessarily be evidence of fraud.  Either that would have been written on the time sheets before they were signed by Mr Sinclair or it could have been added afterwards, but, even if it were added afterwards, it would not, to my mind, be clear evidence of fraud for the simple reason that, as Mr Sinclair says, his signature does not authorise payment.  It would seem on that basis to be at least explicable by somebody seeking to record on the time sheet what they thought should be paid and that is quite different. In any case the evidence is, as I have said, unsatisfactory and somewhat confused.

37	The next allegation in sub‑paragraph (iv) under the Particulars of Fraud is that the day sheets, dated 27 December 2017, record six men on site, but Mr Sinclair, in his diary, records only five men.  It is also averred in that sub-paragraph that Mr Sinclair would always cross‑reference his diary before signing off on the day sheets.  If that is right, then the inference that is sought to be drawn must be that the day sheet was tampered with after it had been signed by Mr Sinclair. But that assumes that Mr Sinclair was always right in his signature and it assumes that his diary is sacrosanct as to the number of operatives on site. That is a very considerable assumption to be made on this application.  

38	Further, the next sub‑paragraph (v) alleges that there is discrepancy between the day sheet for 5 January 2018 and Mr Sinclair’s diary.  The time sheet recorded seven men on site for eight hours whereas, it is said, Mr Sinclair’s diary recorded three men for eight hours and four men for four hours.  The diary entry says this: “Three times Assesmont (other ops on a course should be on site at 12) half day” and then after that a number and the abbreviation “ops”.  The number appears to have been changed in the diary and it is quite unclear whether it is 5, 6 or 7.  

39	Finally, at sub‑paragraph (vi), it is alleged that the day sheets for 6 January 2018 records six men on site, but Mr Sinclair’s diary recorded four men on site. On 5 January, Mr Sinclair had in an e‑mail timed at 15:54, asked to have six men on site on Saturday but none on Sunday. Mr Hiscott responded at 16.29 on 5 January confirming that he would have six men on site at a rate of time and a half as agreed.  Therefore, although there may appear to be a discrepancy between Mr Sinclair’s diary and the time sheet, the number of men recorded was at least in accordance with what had been requested, and it can be seen from that exchange that the expression “time and a half” was being used perhaps as shorthand for what was provided for in the contract.

40	The discrepancy between the time sheets and Mr Sinclair’s diary is doubtless a matter that can be explored in due course, but to assert that this is evidence of fraud involves the proposition that Mr Sinclair’s diary entries are sacrosanct without any evidence as to why the court should reach that conclusion.  If the time sheets are wrong, that could as easily be evidence of error as of fraud.  On analysis, there are only three time sheets out of the total number of 21 or 22 where such a discrepancy is said to exist.  That is far from evidence of systematic over‑stating of the number of men on site and that reinforces my view that that could as easily be evidence of error as of fraud.  Further, Assesmont asks, rhetorically, if the time sheets contain such evidence, why were they not questioned or challenged at the time. 

41	There are a number of other sub‑paragraphs of the defence which take points that the day sheets did not contain the names of operatives who had worked on the site; that they did not specifically identify number of hours worked; that they did not provide the names and qualifications of the people who had worked on site; and that, despite requests for that information, it has not been provided.  There are then two further general allegations that (a) compare the work for which the claimant originally quoted with the total amount claimed which is, self‑evidently, very substantially more and (b) make the point that the claimant’s works constituted only a minor part of the defendant’s project.  All those points are relied on to cast doubt on the value of a claim that has been submitted, but they do not, in my view, amount to allegations of fraud.

42	The final matter relied upon is an email, dated 22 March 2018, which was sent by someone called Jason Tipple from Creative Steel Solutions Limited to Mr Harrald.  In that email, Mr Tipple said this:

“As discussed, I have been reliably informed by members of Assesmont Limited’s team past and present that it was Dave Sams’ intention to exploit the works at Apollo House in the belief that Creative Steel Solutions Limited has carried out all the works”.  

Mr Sams is the Managing Director of Assesmont who has also given a witness statement in this matter.  The email continued:

“As you may be aware, Dave Sams and Scott Harvey have some past history and although I have no proof, I have been reliably informed that there was a clandestine relationship there and some reward offered to Scott Harvey for the work/info given and backup.  It has been relayed to them that it was his intention to vastly inflate his costs in the belief that it was to be deducted from our account.  Steve Pearce, who works for me, asked him what he was up to when he was investigation [sic] parts of the structure on site that were not part of his works or works you had asked him to provide an opinion on, when confronted his comment was ‘It’s between Me & Jason’”.  

Mr Tipple offered to be of further assistance.

43	I have read that email in whole because it is very clear that it is, apart from possibly being double hearsay, a series of allegations made by Mr Tipple about what would appear to be a rival firm without any backup or substantiation.  It may be, of course, the case that Mr Tipple gives evidence that is persuasive to this court that members of Assesmont’s team did intend to exploit the works at Apollo House, but, without such evidence, I will place very little weight on what is said in an email such as this. I note that the witness statement of Mr Sams provides a lengthy response and refutation of those allegations.  He says, in summary, that Creative Steel Solutions is a firm that has, as he puts it, formed a grudge against Assesmont; that that is what has motivated Mr Tipple to write as he did; and that CSSL has already tried to discredit Assesmont with other suppliers. He also refutes any suggestion that he has some kind of clandestine relationship with Scott Harvey and explains the nature of his knowledge and contact with Mr Harvey. That is very different from the position in Gosvenor where serious allegations of fraud were initially met with silence.

44	Mr Towers submits that I should look at all of these matters together and that, taken together, rather than dissected in isolation, they pass the threshold of clear and unambiguous evidence of fraud.  I disagree. The evidence, in my judgment falls, far short of clear and unambiguous evidence of fraud.  I do not dispute that there are matters which might require consideration in evidence and where doubt might be cast upon Assesmont’s account, but to describe those matters as clear and unambiguous of fraud is, in my view, not sustainable.

Assesmont’s financial position

45	No other reason for staying execution is advanced other than a submission that Assesmont would be unable to repay the amount awarded to it.  That submission is based on the evidence of Mr Sams which he volunteered as to Assesmont’s financial position.  What he said in his statement was that Assesmont was in a good financial position, it had ongoing works orders valued at over £300,000 and it anticipated receiving orders for a further £300,000 of work over the next few weeks.  He then said this:

“If the summary judgment is granted but Brookvex is subsequently successful on the valuation of works and sums are due in return to Brookvex (which I do not accept) the Court can be satisfied that Assesmont will be able to pay such sums which would at the most be around £60,000”.  

That lower amount arises because it is accepted that about £19,000 of the sum awarded is indeed due by way of payment from Brookvex to Assesmont.

46	What Mr Towers submits is that that evidence of Assesmont’s position is somewhat thin and it is patently a matter simply of assertion by Mr Sams not backed up by any evidence of Assesmonts’s current orders, its current work, or the future orders that it anticipates.  However, that does not mean that it amounts to evidence of inability to repay which ought to lead me to grant a stay.  If I were to reach that conclusion, that would have the effect of placing on the claimant the burden of showing on enforcement proceedings that it is able to repay.  That would, in my view, be wrong in principle because it would impose another test for enforcement for which there is no justification.  It is for the defendant who seeks a stay to show that there is sufficient evidence that the claimant could not repay. That the defendant has not sought to do or done.

47	For all those reasons, I will enter judgment in favour of the claimant in the amount claimed and I will decline to stay execution. I will hear from counsel in a moment in relation to that and costs. 

48	The final matter is that the course these proceedings have taken, a little unusually, is that the defendant’s claim that the claimant was not entitled to the money it applied for had been advanced as a counterclaim in the extant proceedings.  No objection has been taken to that course rather than what might be the more normal course of the defendant commencing its own Part 7 proceedings.  It does, however, follow from the decision that I have reached that the defence and counterclaim will need substantial amendment.  I will hear from counsel in a moment as to the appropriate course, but what I am minded to do is give directions relating to those amendments and at the same time transfer this matter which is then of relatively small value to the county court.

49	It is not, however, appropriate to make any of those matters conditional on the meeting of this judgment.  Whilst this court has emphasised frequently the importance of supporting the adjudication process, it is not the case that a party’s right to challenge a decision in adjudication is conditional on payment of any award made, and I do not think that it would be right either to stay the counterclaim or to give directions that have that effect.   
__________

CERTIFICATE

Opus 2 International Ltd. hereby certifies that the above is an accurate and complete record of the proceedings or part thereof.

Transcribed by Opus 2 International Ltd.
(Incorporating Beverley F. Nunnery & Co.)
Official Court Reporters and Audio Transcribers
5 New Street Square, London EC4A 3BF
Tel:  020 7831 5627     Fax:  020 7831 7737
civil@opus2.digital

This transcript has been approved by the Judge