Insolvency and adjudication again

The Court of Appeal in John Doyle Construction Ltd (in liquidation) v Erith Contractors Ltd [2021] EWCA Civ 1452 dismissed an appeal from the decision of Fraser J (on which see our November 2020 issue, pp 1–6) and held that the claimant, a company in liquidation, was not entitled to enforce the decision of an adjudicator. The three grounds of appeal which were dismissed were narrowly drawn and depended heavily on the facts of the case. Of much greater significance are two wider points raised in the judgments of the court. The first relates to the burden placed on a company in liquidation which is seeking to enforce the decision of an adjudicator where the Court of Appeal emphasised the importance of ensuring that it is clear to all those involved in the litigation what the judge is being asked to decide and what, if any, security is being offered by the claimant. The second point relates to the entitlement of a company in liquidation to enforce the decision of an adjudicator. Here the Court of Appeal took a very narrow view of the entitlement of such a company to enforce the decision of an adjudicator, particularly in the case where the other party to the adjudication has an unresolved claim to a set-off or a counterclaim against the claimant. In short, it is now extremely unlikely that such a company will be entitled to enforce the adjudicator’s decision.