REUTERS | Robert Pratta

Stays of execution, approbation and reprobation, and the binding nature of an adjudicator’s decision

It sometimes feels like issues in case law are a bit like buses. You don’t see one for ages and then several come along all together. I got that feeling recently when I read the judgments in Westshield v Buckingham and FG Skerritt v Caledonian Building Systems. For very different reasons, in both cases the court enforced the adjudicator’s decision and rejected the stay of execution sought by the paying party under that decision.

Aside from the stay of execution point (which failed, Buckingham was ordered to be pay the amount found to be due by the first adjudicator), I thought the judgment in Westshield v Buckingham threw up a number of other interesting issues.

Westshield v Buckingham

This case was all about drainage works on a new studio for the soap opera, Coronation Street. When a dispute arose over the value of the sub-contractor’s final account, which Buckingham referred to adjudication, one issue was about which party had entered into the sub-contract with Buckingham: either it was Westshield Ltd (WL) or Westshield Civil Engineering Ltd (WCEL). It was important to get the correct contracting party, particularly as WCEL was said to be a dormant company and WL had been placed in a creditor’s voluntary arrangement (CVA).

As the parties both put in submissions arguing which company was the correct sub-contractor, the first adjudicator was asked to decide the point. In his decision (which also valued the disputed final account), he concluded the correct contracting party was WCEL:

“The Referring Party was very firm in that the Contract had been placed with [Civil Engineering] and any references to [WL] are erroneous. I must agree with the Referring Party as the Contract Agreement is clear and unambiguous…”

This meant he was agreeing with Buckingham’s submission that WCEL was the correct sub-contractor.

Second adjudication

It’s the next stage of the process where things get more interesting.

Now it was the sub-contractor’s turn to start an adjudication. As the first adjudicator had decided the correct sub-contractor was WCEL, WCEL started this one, seeking payment of the money awarded by the first adjudicator (the first adjudicator only had jurisdiction to make a declaration as to the value of the final account).

A second adjudicator was appointed, but soon declined jurisdiction after Buckingham sought to persuade him that the correct sub-contracting party was WL and not WCEL, as it had argued in the previous round.

It is not clear from the judgment why the second adjudicator did this, since there is a well-established principle in adjudication that the decision of one adjudicator will bind a subsequent adjudicator. It seems odd too, that Buckingham raised an argument that was (in the words of Akenhead J), “completely contrary to the stance it had taken in the adjudication”.

Leaving aside the tactics adopted by Buckingham (which, to some extent, are explained in the judgment), I’m still puzzled by the second adjudicator’s decision to decline jurisdiction. As the judgment makes no more mention of those proceedings, the parties appear to have been content not to pursue the point (at least in adjudication).

Approbation and reprobation

While Akenhead J described this as an “immaterial” argument and an “almost pointless issue”, the fact that Buckingham used one argument in the first adjudication and a contrary argument in the second adjudication seems to me to be as clear an example of approbation and reprobation as you may see. On the facts, Akenhead J decided the principle did not arise because the first adjudicator had been given jurisdiction to decide the point, a decision which would then bind subsequent adjudicators. This meant Buckingham was not permitted to approbate or reprobate.

It appears that Buckingham couldn’t have its cake and eat it this time.

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