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A DISCUSSION AS TO THE APPLICATION OF ADJUDICATION AS A METHOD OF DISPUTE RESOLUTION AND COST RECOVERY FOR PARTIES APPROACHING, OR IN, FORMAL INSOLVENCY

International Construction Law Review

A DISCUSSION AS TO THE APPLICATION OF ADJUDICATION AS A METHOD OF DISPUTE RESOLUTION AND COST RECOVERY FOR PARTIES APPROACHING, OR IN, FORMAL INSOLVENCY

Oliver Macrae

Associate, Burges Salmon LLP

ABSTRACT

Formal insolvency is a concern for a number of construction professionals and the associated supply-chain. Dispute resolution mechanisms that provide for avenues of quick cash recovery are ones that insolvency practitioners welcome.
This paper surveys the legal position in England and Wales following the Supreme Court’s judgment in Bresco Electrical Services Ltd (In Liquidation) v Michael J Lonsdale (Electrical) Ltd, and comments where appropriate on its impact on the application of adjudication as a method of dispute resolution/cost recovery for parties in, or approaching, formal insolvency.

INTRODUCTION

The judgment in Bresco Electrical Services (In Liquidation) v Michael J Lonsdale (Electrical) Ltd 1 was handed down by the Supreme Court on 17 June 2020 (“Bresco (SC)”). This confirmed that a party in formal insolvency can adjudicate, whilst questions around enforceability should be addressed at an enforcement hearing. This paper considers the trio of Bresco cases (later introduced) alongside an analysis of the developing body of enforcement that speak to the ability of a party in formal insolvency to enforce a decision. The main cases to be considered in respect of enforcement are Meadowside Building Developments Ltd (In Liquidation) v 12-18 Hill Street Management Co Ltd,2 Balfour Beatty Civil Engineering Ltd v Astec Projects Ltd (In Liquidation),3 John Doyle Construction Ltd v Erith Contractors Ltd 4 and Styles and Wood v GE CIF Trustees.5
Pt 2] A Discussion as to the Application of Adjudication

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