ADUDICATION: LEGAL PRINCIPLE MUST PREVAIL OVER ‘BROAD BRUSH POLICY’

Tally Wiejl (UK) Ltd v Pegram Shopfitters Ltd [2003] EWCA Civ 1750 (21 November 2003)

The Court of Appeal in Tally Wiejl (UK) Ltd v Pegram Shopfitters Ltd [2003] EWCA Civ 1750 (21 November 2003), has allowed an appeal from the decision of Judge Thornton QC (on which see our September 2003 issue, pp.1–4) and held that the defendant was entitled to resist the claimant’s application for summary judgment to enforce the decision of the adjudicator. The grounds on which the defendant submitted that the adjudicator lacked jurisdiction were not fanciful and may well have been correct. The claimant submitted that a refusal to grant summary judgment would undermine the ‘pay now, argue later’ policy which underpins the Housing Grants, Construction and Regeneration Act 1996 (hereafter ‘the 1996 Act’). The Court of Appeal rejected this submission and held that legal principle must prevail over ‘broad brush policy’. Judges must be ‘vigilant’ to examine ‘critically’ arguments that the adjudicator lacked jurisdiction but, where they find that the defendant’s submission that the adjudicator lacks jurisdiction is not fanciful, they must not brush such principled objections under the carpet in the name of the ‘pay now, argue later’ policy which underpins the Act.