“I said it in Hebrew – I said it in Dutch-/
I said it in German and Greek; /
But I wholly forgot (and it vexes me much)/
That English is what you speak!”1
16.1 Northern Ireland became a separate jurisdiction within the United Kingdom in 1921, following the entry into force of the Government of Ireland Act 1920. which established the Northern Ireland Parliament as the body responsible for the passing of local legislation.
16.2 1972 saw the Northern Ireland Parliament prorogued by the Northern Ireland (Temporary Provisions) Act 1972, with legislative responsibility passing to the Secretary of State for Northern Ireland, such responsibility being exercised by Orders in Councils. In 1998, the Northern Ireland Act 1998 established the Northern Ireland Assembly, which took over responsibility for legislation, apart from excepted and reserved matters; such responsibility was exercised in the form of primary acts.2
16.3 The Northern Ireland Parliament therefore introduced the Construction Contracts (Northern Ireland) Order 1997 (the Order)3 as the instrument under which the HGCRA is enacted in Northern Ireland, this having been brought into operation on 1 June 1999.4 Changes to the HGCRA were introduced by the Northern Ireland Assembly through the Construction Contracts (Amendment) Act (Northern Ireland) 2011 (the 2011 Act)5 [Appendix 19.2] and these came into force on 14 November 2012.6
16.4 No material differences exist between the English and Northern Irish legislation, sections 104 to 107 inclusive of the HGCRA (concerning the scope thereof) being replicated in articles 3 to 6 inclusive of the 1997 Order; the right to refer disputes to adjudication (enshrined by section 108 of the HGCRA) is to be found in article 7 of the Northern Irish legislation and section 114 (and article 13) enable the making of the Scheme regulations. The amendments introduced by the LDEDCA [Appendix 1.3], which, amongst other things, removed the requirement for the construction contract to be in writing in order to provide the right to refer a dispute to adjudication, were effected in Northern Ireland by the 2011 Act.
16.5 The 1998 Scheme was introduced in Northern Ireland by the Scheme for Construction Contracts in Northern Ireland Regulations (Northern Ireland) 1999, which came into force on 1 June 1999.7 The amendments to the 1998 Scheme were introduced by the Scheme for Construction Contracts in Northern Ireland (Amendment) Regulations (Northern Ireland) 2012, which came into force on 14 November 2012.8 Like the primary legislation, the secondary legislation is the same in England and Northern Ireland.
16.6 Some 100 construction adjudications take place each year in Northern Ireland, the vast majority being final account claims by sub-contractors against main contractors. It is relatively rare for disputes arising during the currency of the contract to be referred to adjudication, the reasons for this probably being twofold: first, sub-contractors do not wish to harm contractual relations by instigating formal dispute resolution procedures whilst work is ongoing and, secondly, the prohibition against the recovery of costs (unless the parties consent to the adjudicator making a costs award) acts as a disincentive to referrals, when only modest sums can be recovered. It thus makes financial good sense for a single referral to be made at the conclusion of the contract works.
16.7 Whilst statutory adjudication came into force in Northern Ireland in 1999, there are, remarkably, no reported court decisions upon the enforcement of adjudicators’ awards until 2008. There are probably various reasons for this. First, legal (and construction) practitioners may have been unaware of, or unfamiliar with, the particular requirements of the adjudication régime. Secondly, the vast majority of disputes may ultimately have settled, either by acceptance of the adjudicator’s decision, or by further agreement. Thirdly, in keeping with most summonses under Order 14, applications for summary judgment were initially heard by Masters in the Queen’s Bench Division, rather than being referred to the Commercial Judge.
16.8 Only in January 2009 (when the then Commercial Judge, McLaughlin J, delivered judgment in D G Williamson v Northern Ireland Prison Service9) did the High Court give any detailed consideration to the enforcement of adjudicators’ awards. The defendant there sought to resist enforcement of the decision, advancing a number of arguments based upon alleged want of jurisdiction of the adjudicator and the existence of a substantial set-off against the claimants claim. McLaughlin J cited (with approval) a number of leading English and Welsh authorities, including Macob Civil Engineering v Morrison Construction10 and Carillion Construction v Devonport Royal Dock Yard,11 observing as follows:
“I am satisfied that the starting point for a court dealing with a request for enforcement of the award of an Adjudicator is that it should work on the assumption that the award ought to be enforced, on a summary basis if necessary. The purpose of the legislation is to ensure speedy payment by dint of a summary process and, even where there is an error, to require the money to be paid and for the matter to be sorted out later when the contract disputes are settled finally by way of agreement, arbitration or litigation. I do not need to review at this stage the history of the legislation and the valiant attempts made to improve cash flow and payment practices in the construction industry. In this context, it is worthy of note that the 1997 Order, and the 1996 Act, both outlaw the practice of ‘pay when paid’ clauses, which were frequently operated by main contractors to withhold payments from sub-contractors where they had not themselves been paid. The essential ground upon which the defendants object to paying the award of the adjudicator, once the jurisdiction issues are set to the side, is that they have a large Counterclaim. That Counterclaim remains subject to proof. It may be accurately stated in the affidavits, or it may be under, or overstated. The purpose of the arbitration is to find out what sum, if any, is due by way of restitution to the defendants. I am satisfied that process should take its own course and that there are no cogent reasons put before me which justify the court in refusing to follow the normal practice of enforcing the award of the adjudicator pending authoritative determination of all remaining disputes between the contracting parties.”
16.9 Since that judgment, the Northern Ireland courts have seen an increase in the number of claims to enforce adjudicators’ decisions and, on the whole, the courts have so enforced. This chapter therefore addresses the procedures for enforcing adjudicators’ decisions in Northern Ireland and summarises the few reported cases which have been dealt with via that process. A party faced with an adjudication in Northern Ireland should have regard to the commentary on the position in England and Wales as set out in chapter 2 above, except upon matters of enforcement procedure and the topics addressed in the cases highlighted below.
16.10 For the statutory Scheme to provide an effective and expeditious route to ensure cash flow in the construction industry, it is essential that decisions made by adjudicators should be capable of enforcement through the courts.
16.11 Proceedings in the High Court of Justice to enforce an adjudicator’s decision are commenced by writ of summons issued in the Queen’s Bench Division. Given that a summary judgment application under Order 14 of the Rules of the Court of Judicature (Northern Ireland) 1980 (RCJ (NI) 1980) cannot be commenced unless and until a statement of claim has been served, it is standard practice to endorse the writ of summons with the statement of claim.
16.12 If interest is sought, whether pursuant to contract, the Late Payment of Commercial Debts (Interest) Act 1998, or the discretion of the court pursuant to section 33A of the Judicature (Northern Ireland) Act 1978, it is required that the writ of summon be endorsed with:
- the rate of interest claimed;
- the date from which interest is payable;
- the amount of interest claimed up until the date of the writ of summons;
- the claim for interest up until the date of judgment, or sooner payment.12
16.13 No Technology and Construction Court exists in Northern Ireland and such actions come, instead, within the ambit of “commercial actions”, which are dealt with in a Commercial List within the Queen’s Bench Division, under the control of the Commercial Judge, currently Weatherup J. The provisions for entry into the list and case management are contained within Order 72 of the RCJ (NI) 1980 the Commercial List Practice Direction,13 the Practice Note and the Pre-Action Protocol for Commercial Actions,14 Order 72 rule 1(2) stating as follows:
“In this Order ‘ commercial actions’ shall include any cause relating to business or commercial transactions and, without prejudice to the generality of the foregoing words, any cause relating to contracts for works of building or engineering construction, contracts of engagement or architects, engineers or quantity surveyors, the sale of goods, insurance, banking, the export or import of merchandise, shipping and other mercantile matters, agency, bailment, carriage of goods and such other causes as the Commercial Judge may think fit to enter in the Commercial List.”
16.14 Any action seeking to enforce the decision of an adjudicator under a construction contract therefore amounts to a commercial action. By Order 72 rule 3(1), it is obligatory for a claimant’s solicitor, at the beginning of proceedings in a commercial action, to endorse this fact upon the writ of summons and thereby to seek entry into the Commercial List.
“Applications for summary judgment on an Adjudicator’s award under the Constructions Contracts (NI) Order 1997 as amended shall be made to the Commercial Judge.”
16.16 The Pre-Action Protocol for Commercial Actions requires parties to exchange detailed correspondence and engage in a meeting prior to the issue of proceedings, but the provisions of the Protocol are excluded in regard to adjudication, because they are perceived to be incompatible with the speedy procedure generally provided by adjudication. There is therefore no obligation to comply with the Protocol when the proceedings:
“are for the enforcement of the decisions of an Adjudicator to whom a dispute has been referred pursuant to the Construction Contracts (NI) Order 1997, as amended, or relate to the same or substantially the same issues as have been the subject of recent Adjudication under the Construction Contracts (NI) Order 1997, as amended, or some other formal alternative dispute resolution procedure.”
16.17 As a result of the above procedural measures, applications for summary judgment to enforce adjudicators’ decisions are now made to the Commercial Judge and dealt are with by him under an expedited procedure, Order 14 of the RCJ (NI) 1980 laying down the procedure for applications for summary judgment, and providing that, in any case where a statement of claim has been served and the defendant has entered an appearance, a claimant may request summary judgment upon the grounds that the defendant has no defence to a claim, or part of a claim.
16.18 Order 14 rule 2 requires such application to be made by summons, supported by an affidavit verifying the facts upon which the claim is made and stating the deponent’s belief that there is no defence to the claim. That affidavit will generally set out the background to the dispute and exhibit the adjudicator’s decision. The defendant will be afforded an opportunity to file a response affidavit, setting out the substance of any claim of want of jurisdiction, or denial of natural justice, or, often, such evidence as is relied upon to substantiate a claim that the claimant will be unable to repay the amount of the decision at the end of the dispute resolution process; this frequently necessitates a rejoinder affidavit from the claimant, responding to the issues so raised.
16.19 Once the summary judgment application has been filed, the court swiftly lists the case for directions, the target set by the court being to hear and determine such applications within 28 days of issue; the court will also give directions as to the filing and exchange of skeleton arguments regarding any legal issues arising. The standard timetable permits:
- 10 days for the claimant to file its affidavit evidence;
- 10 days for the defendant to respond;
- A hearing date being within 28 days.
“If the statutory scheme is to require the Adjudicator to make his decision within 28 days then the Court should attempt a timetable that permits any dispute on the Adjudicator’s decision to be heard within the same period.”15