Procedure In Enforcement Proceedings

Procedure in Enforcement Proceedings in relation to the Technology and Construction Court

[rtbs name=”technology-and-construction-court”]Unlike arbitration business, there is neither a practice direction nor a claim form concerned with adjudication business. The enforcement proceedings normally seek a monetary judgment so that Civil Procedure Rules Part 7 proceedings are usually appropriate. However, if the enforcement proceedings are known to raise a question which is unlikely to involve a substantial dispute of fact and no monetary judgment is sought, Civil Procedure Rules Part 8 proceedings may be used instead. The Technology and Construction Court has fashioned a procedure whereby enforcement applications are dealt with promptly. The details of this procedure are set out below. The claim form should identify the construction contract, the jurisdiction of the adjudicator, the procedural rules under which the adjudication was conducted, the adjudicator’s decision, the relief sought and the grounds for seeking that relief. The claim form should be accompanied by an application notice that sets out the procedural directions that are sought. Commonly, the claimant’s application will seek an abridgement of time for the various procedural steps, and summary judgment under Civil Procedure Rules Part 24. The claim form and the application should be accompanied by a witness statement or statements setting out the evidence relied on in support of both the adjudication enforcement claim and the associated procedural application. This evidence should ordinarily include a copy of the Notice of Intention to Refer and the adjudicator’s decision. Further pleadings in the adjudication may be required where questions of the adjudicator’s jurisdiction are being raised.The claim form, application notice and accompanying documents should be lodged in the appropriate registry or court centre clearly marked as being a “paper without notice adjudication enforcement claim and application for the urgent attention of a Technology and Construction Court judge”. A Technology and Construction Court judge will ordinarily provide directions in connection with the procedural application within 3 working days of the receipt of the application notice at the courts. The procedural application is dealt with by a Technology and Construction Court judge on paper, without notice. The paper application and the consequent directions should deal with: (a) the abridged period of time in which the defendant is to file an acknowledgement of service; (b) the time for service by the defendant of any witness statement in opposition to the relief being sought; (c) an early return date for the hearing of the summary judgment application and a note of the time required or allowed for that hearing; and (d) identification of the judgment, order or other relief being sought at the hearing of the adjudication claim. The order made at this stage will always give the defendant liberty to apply. A direction providing that the claim form, supporting evidence and court order providing for the hearing are to be served on the defendant as soon as practicable, or sometimes by a particular date, will ordinarily also be given when the judge deals with the paper procedural application. The directions will ordinarily provide for an enforcement hearing within about 28 days of the directions being made and for the defendant to be given at least 14 days from the date of service for the serving of any evidence in opposition to the adjudication application. In more straightforward cases, the abridged periods may be less. Draft standard directions of the kind commonly made by the Technology and Construction Court on a procedural application by the claimant in an action to enforce the decision of an adjudicator are attached as this legal Encyclopedia. The claimant should, with the application, provide an estimate of the time needed for the hearing of the application. This estimate will be taken into account by the judge when fixing the date and length of the hearing. The parties should, if possible jointly, communicate any revised time estimate to the Technology and Construction Court promptly and the judge to whom the case has been allocated will consider whether to refix the hearing date or alter the time period that has been allocated for the hearing. If the parties cannot agree on the date or time fixed for the hearing, a paper application must be made to the judge to whom the hearing has been allocated for directions. Parties seeking to enforce adjudication decisions are reminded that they might be able to obtain judgment in default of service of an acknowledgment of service or, if the other party does not file any evidence in response, they might be able to obtain an expedited hearing of the Part 24 application. Generally, it is preferable for a party to enter default judgment rather than seek an expedited hearing, because that reduces the costs involved (the terms of the order usually mention this explicitly).