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It鈥檚 all very well to explain that 28-day dispute adjudication is only about 鈥減ay now, argue later鈥�. What if there is no later?

What if the adjudicator orders payment, and the money is paid, and the payee now does a commercial runner? What if later the payee has gone bust? And what if by then the adjudicator鈥檚 high-speed, knock-about, rough-and-ready decision is a few bricks short of a full load? I mean, the decision is damn well wrong, but money is paid. Now what?

I reckon that鈥檚 the sort of thinking that gave Northern Ireland main contractor Merex Construction Ltd the jitters. Actually, it鈥檚 the same thinking over all the 15 years of adjudication that has tormented our industry.

The subcontractor, Rodgers Contracts (Ballynahinch) Ltd, probably had the jitters about why Merex hadn鈥檛 paid them, and called for a quick adjudication. It won. Merex got the jitters too. It didn鈥檛 fancy shelling out the 拢160k the adjudicator ordered them to pay because it reckoned it was a wrong result and that they would never get it back if and when they won a 鈥減roper鈥� battle in arbitration. The whole idea of adjudication is to get a quick rough and ready decision about who should have the cash while waiting for a court or arbitrator to 鈥減roperly鈥� decide the issues. Great idea until it dawns on one or the other party that the other bloke will have the money in his bank, not theirs. Then those jitters get the better of you.

Rodgers did a fair amount of subcontract civils work for Merex at its main contract for Belfast Harbour Commissioners at Musgrave Scrap Wharf, Belfast. Merex complained that Rodgers鈥� concreting work was defective and had a claim from the employer, which Merex paid for. Hence it withheld cash from Rodgers. The subbie quite fairly called for an adjudicator because it said the main contractor was wrong. The adjudicator said the same, hence the order to stump up 拢160k to Rodgers.

Jitters came rushing in. Merex gave notice of arbitration. So now Merex came to court inviting the judge in the meantime to stay the adjudicator鈥檚 order to pay that 拢160k. Things got even more exciting. Merex said that Rodgers was in financial straits, so could Merex hang on to the cash. But then Rodgers said that Merex had financial difficulties too. So they should not hang on to that cash; if the arbitrator eventually agreed with the adjudicator it might be that Merex could not find the money. It鈥檚 a sort of no-score draw. Except, of course, an adjudicator鈥檚 award according to statute is to be obeyed and that means Metrex is to be relieved of its 拢160k.

The Northern Ireland judge had to decide what to do. Should he order the payment or not? It was not argued that the adjudicator鈥檚 decision was wrong or contained a procedural impropriety. No, the argument was about risk of the money being lost if the payee went out of business before the 鈥減roper鈥� trial in arbitration. The bolt hole is to be found outside adjudication. There are Civil Procedure Rules in Northern Ireland equivalent to those in England and Wales, which invite the judge to ask if there are 鈥渟pecial circumstances which render it inexpedient to enforce the judgment鈥� and a stay of enforcement may be granted.

The approach for the judge is first not to interfere or even investigate the reasoning or decisions of the adjudicator. The result is binding. The approach to enforcement here is all about the assets and liabilities of the winner. The judge learned that Rodgers was in trouble for money. It had entered into a 鈥渃reditors鈥� voluntary arrangement鈥�. Its debts were 拢1m. The creditors would only receive 50p in the pound. Merex didn鈥檛 want the 拢160k to go into that pot. If Merex eventually won in the arbitration it might be lucky to receive the same 50p in the pound. Further, the judge can be assured that the arbitration result is only a couple of months ahead. Then Rodgers pounced on Merex鈥檚 assets and liabilities saying that if Merex kept the cash and the arbitrator now told them to pay Rodgers, there wasn鈥檛 enough money in their pot. So we want the money now, said Rodgers.

The judge used his discretion to deprive both parties of this pot. The stay of enforcement was granted but on the basis that the 拢160k is paid into court. Nobody gets it until the contest is finished in the arbitration.

Tony Bingham is a barrister and arbitrator at 3 Paper 好色先生TVs, Temple