Those involved in adjudication and, in particular, adjudication enforcement, will be familiar with the procedure laid out in section 9 of the TCC Guide; a procedure that developed after the Construction Act 1996 came into force in May 1998. Quite how many times this procedure has been used over the last ten years is difficult to estimate, but a significant body of case law has developed as a result.
Applying for judgment in default
Anyone who has read Akenhead J’s comments in Coventry v Lancsville will realise that the TCC’s view of best practice in adjudication enforcement proceedings continues to evolve. He indicated that there are instances when the claimant should be doing more to expedite the enforcement proceedings. He specifically identified two situations, namely where the defendant:
- fails to acknowledge service of the claim form and summary judgment application; or
- acknowledges service and then indicates that it is not going to take part in the proceedings.
If the defendant fails to acknowledge service, Akenhead J’s advice to the claimant is to apply for judgment in default of acknowledgement of service.
If the defendant acknowledges, but then indicates it will take no part in the proceedings, the claimant should apply to the court to bring the summary judgment hearing forward.
There are good reasons for this advice. In the current economic climate, more parties are chasing money and starting enforcement proceedings to get it. The TCC is busier than ever, dealing with enforcement cases. We understand that in recent months, the TCC has tended to hand down some of its judgments ex tempore (that is, verbally, at the time of the hearing). This may also be a reflection of the increase in its work-load.
Expediting matters will therefore save both the parties’ money and the court’s time.
Will this advice be reflected in the revised TCC Guide?
We are waiting for the TCC to publish revision 3 of the TCC Guide. It will be interesting to see whether this advice is reflected in those revisions, or whether the court is simply reminding the parties that there are other options available to them, beyond rigorously following the section 9 procedure. As Akenhead J said:
“The fact that time for the lodging of the Acknowledgement of Service is abridged to five days… does not mean that a claimant cannot obtain judgment in default of the filing of the Acknowledgement of Service, when that abridged time has elapsed.”
What about costs?
It is unclear whether a claimant who fails to follow Akenhead J’s latest advice will be penalised on costs, when it appears at the enforcement hearing. However, in light of the judge’s comments, a claimant should not assume that it will recover all of its costs, even if the application is uncontested. (For a cautionary tale of the claimant only recovering 40% of the costs of enforcement, see Akenhead J’s judgment in Allied v Paradigm.)
Anecdotal evidence also suggests that, where a party uses the section 9 procedure in the way the TCC anticipates it should be used, an ex tempore judgment may award indemnity costs to the claimant. After all, we understand that some ex tempore judgments relate to what an uncharitable person might call a “hopeless” defence to adjudication enforcement…