Gerard Ferns, Kerry-Ann Ferns v Keith West, Adam West, Linda West (T/A Haven Build)

Case reference: 
[2019] EWHC 141 (TCC)
Monday, January 21, 2019

Key terms: 
Adjudication - enforcement – Summary judgment - judgment in default of acknowledgement of service

The Claimants, Mr. and Mrs. Ferns entered into a contract with Haven Build (the Defendant). The contract was a standard form issued by the Federation of Master Builders in September 2014 for a minor building work for a sum of £137,000.   A dispute arose as to the quality of the works and the fact that they were incomplete.  The Claimants were successful in their adjudication and a sum was ordered in their favour. 

The Claimants brought an adjudication enforcement against the three Defendants.  The proceedings were issued against the first and the second Defendants and in addition the Claimants’ sought judgement in default of acknowledgement of service against the third Defendant Ms. West. 

The first question before the court was to consider whether the adjudication was defective because “Haven Build” had been the Responding Party instead of the named defendants.  Fraser J rejected this argument because, in order to be successful, it would make a number of cases such as Total M&E Services Ltd v ABB Building Technologies Ltd [2002] EWHC 249 (TCC) or Durham County Council v Jeremy Kendall (t/a HLB Architects) [2011] EWHG 780 (TCC) and others either wrong or need to be distinguished.

Furthermore, Fraser J noted that such argument would result in the Housing Grants Construction and Regeneration Act 1996 (“HGCRA 1996”) being deficient as S.108 affords the right to adjudicate against a contracting party and does not have the legal mechanisms of the CPR (specifically CPR Part 7).

In light of the above, Fraser J came to the conclusion that the Claimants were entitled to summary judgment against Defendant 1 and Defendant 2.  Turning to Defendant 3, he confirmed that the Claimants were also entitled to judgment in default of acknowledgment of services.

This case demonstrates that enforcement cannot be resisted due to technicalities of the name on an adjudication and the name on enforcement proceedings.

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