In the recent case of Pochin Construction Ltd v. Libery Property (G.P.) Ltd, which involved adjudication enforcement proceedings where the defendant did not participate (beyond serving an acknowledgement of service), the Technology and Construction Court has enforced an adjudicator’s decision and awarded the claimant its costs on an indemnity basis.
The dispute arose out of renovation and refurbishment works to a property in Hyde Park Square, London. It was one of several disputes referred to adjudication. This time, the adjudicator awarded the claimant some £872,000 plus VAT and ordered the defendant to pay his fees. During the adjudication, the defendant had raised a number of jurisdictional arguments, which the adjudicator dismissed.
As the defendant acknowledged service of the enforcement proceedings, the claimant anticipated it would defend the proceedings with the same vigour as on previous occasions, “taking every point that was going”. It prepared accordingly. It was for this reason that the court allowed the claimant to recover all of its costs in full, even though it was concerned about the number of documents that had been included in the court bundle. The court also granted the claimant a declaration, effectively making the defendant liable for the adjudicator’s fees, acknowledging that otherwise it would be joint and severally liable for those fees.
A court may award indemnity costs in adjudication enforcement proceedings if it disapproves of how the defendant conducted its case (such as when the challenge to the adjudicator’s decision is without merit), but it is by no means certain that it will do so. Here, the defendant was sophisticated, with access to solicitors and counsel. The court was effectively saying that it should have either paid what it owed or participated in proceedings. It could not simply acknowledge service and then do nothing.