When Insolvency Trumps Rough Justice: Injunctions and Stays of Execution of Adjudication Proceedings

David Sears QC, Crispin Winser and Joshua Brown

January 2020

A paper presented to the Society of Construction Law at meetings in London on 4th December 2018, in Manchester on 16th January 2019 and in Cardiff on 18th September 2019

This paper considers an area of law which continues to give rise to difficulty: the interaction between the payment and adjudication legislation and the distinct, and much older, body of law relating to insolvency. The paper looks at insolvency as a reason to refuse to grant summary judgment and the issues arising from winding-up petitions and stays of execution. The authors examine the three first instance decisions that highlighted these issues in 2018, namely Gosvenor v Aygun, Lonsdale v Bresco and Primus v Cannon, and their respective Court of Appeal judgments. The authors reflect on the issues left unresolved by these cases, pending the appeal to the Supreme Court in Bresco which is due to be heard in 2020.

Introduction - Background - Insolvency as a reason to refuse to grant summary judgment - The insolvency safeguards: winding-up petitions - Stays of execution - Gosvenor v Aygun - Fraser J - The Court of Appeal - Lonsdale v Bresco - Fraser J - The Court of Appeal - Lingering uncertainties - Meadowside Building Developments v 12-18 Hill Street Management Company - Primus - HHJ Waksman QC - The Court of Appeal - The recent TCC decision in Indigo Projects London Limited v RAZIN - Conclusion.

The authors: David Sears QC, Crispin Winser and Joshua Brown are barristers practising from Crown Office Chambers in London.

Text: 32 pages