Buckingham was engaged as the main contractor to construct a new television studio and asked Westshield Limited (‘WL’) to submit a quotation for the supply and installation of drainage works for the project. WL submitted a quotation which was discussed a pre-order meeting attended by Buckingham and WL. The quotation and the pre-order meeting minutes were subsequently appended to an unsigned form of subcontract (‘the Subcontract’) which included a provision that unless proceedings were commenced within 28 days of the date of an adjudicator’s decision, it would be final and binding on the parties.

For reasons unknown, the Subcontract identified Westshield Civil Engineering Limited (‘Civil Engineering’) as the subcontractor. Although not a subsidiary of WL, Civil Engineering was owned by one or more of the same shareholders of WL and was a dormant company.

Following completion of the Subcontract works a dispute arose over the final account and Buckingham commenced adjudication (‘First Adjudication’) against Civil Engineering seeking a declaration as to the sums due to the subcontractor. Civil Engineering challenged jurisdiction arguing that the wrong party had been named in the Subcontract whilst Buckingham maintained that the Subcontract was with Civil Engineering.

The parties agreed to give the adjudicator jurisdiction to determine the correct identity of the subcontractor and in his decision he found that Civil Engineering was the correct subcontractor. He also valued the amount due to the subcontractor but declined to make an order for payment on the basis that he lacked jurisdiction.

Following the decision and within the 28 days contemplated by the Subcontract, Buckingham issued proceedings against Civil Engineering and WL. There were no Particulars of Claim but the Claim Form contained brief details of a claim. Buckingham did not serve the proceedings at the time and failed to serve them within the four month period prescribed by CPR 7.5.

Civil Engineering commenced a second adjudication seeking payment of the sums found due to it in the First Adjudication. However, the adjudicator declined to act following a jurisdictional challenge by Buckingham who argued that the decision in the First Adjudication was not enforceable because Civil Engineering was not the correct party to the Subcontract (an approach completely contrary to the stance it had adopted in the First Adjudication).

Civil Engineering and WL commenced proceedings seeking enforcement of the First Adjudication decision and declarations that: (i) Civil Engineering and Buckingham were bound by the first adjudicator’s decision; (ii) that WL, Civil Engineering and Buckingham were bound by the adjudicator’s decision as to the proper identity of the subcontractor; and, (iii) that Civil Engineering was entitled to be paid the balance of the sums due to it.

Civil Engineering and WL contended that the decision in the First Adjudication was binding because proceedings had not been ‘commenced’ within 28 days as they had not been served and/or contained insufficient detail. Civil Engineering and WL also relied upon the doctrine of approbation and reprobation to argue that it was not open to Buckingham to challenge the first adjudicator's decision as to the proper identity of the subcontractor. Buckingham contended that even if the First Adjudication decision was binding there should be a stay of execution as Civil Engineering was dormant and had no assets to speak of.

The Judge held that:

(i) Proceedings are commenced when issued by the Court. Further, the word ‘commenced’ in relevant clause could not be interpreted to mean ‘served’ whist the brief details of the claim on the claim form satisfied CPR 16.2 and were sufficient to refer the underlying dispute to the Court.

(ii) The approbation/reprobation issue was immaterial as the parties had given the adjudicator jurisdiction to decide the correct identity of the subcontractor and it is established law that an adjudicator’s decision is enforceable even if it is wrong as a matter of fact and law. Accordingly, Buckingham was not permitted to approbate/reprobate in the enforcement proceedings.

(iii) The enforcement should not be stayed as WL had agreed to guarantee Civil Engineering’s liabilities and there was no suggestion that WL or Civil Engineering was in a worse financial position than when the Subcontract was entered into.