the information came to light during the disclosure process in the TCC claim, there being some 57,000 documents of which 17,000 were disclosed in Czech or Slovak without an English translation. PBS were not able to point to any documents which would have allowed Bester to establish the facts now relied upon, during the adjudication. Hence, the Judge was satisfied that Bester could not reasonably have been expected to have argued its fraud allegation in the adjudication. The Judge concluded that it was “properly arguable on credible evidence” that PBS had obtained some advantage in the adjudication and that the adjudication decision was obtained by fraud. The Judge made clear his views about this: “It appears that PBS thinks that this was fair game. That Bester was in the wrong for cancelling the sub-contract and that it was doing no more than doing its best to mitigate its losses…Further, there are real questions over Bester’s solvency, there appears to have been no merit in its defence to earlier adjudication enforcement proceedings and PBS might be right that there remains a further significant liability arising from the Wrexham project. Further, it may be that the fraud argument is something of a windfall for an insolvent party that was always going to seek to avoid payment in any event…None of this is, however, an answer to the short point that, by this application, PBS seeks to enforce an adjudication decision which was arguably procured by fraud.” The Judge was further satisfied that Bester could not reasonably have discovered the alleged fraud before the conclusion of the adjudication. Therefore, this was “one of those rare adjudication cases” where there was a properly arguable defence that the decision, was obtained by fraud. It was not for the court to seek to “re-engineer” the decision or sever part of the decision for example to give credit for the value of the water-cooled grate, and to identify what, if any, sum might have been ordered to be paid in the event that there had been no arguable fraud. The application for summary judgment was dismissed.
about the author
Jeremy has specialised in construction energy and engineering law and related matters for most of his career. He advises on all aspects of projects from initial procurement and strategic project advice to dispute avoidance and resolution. He acts across a wide range of construction sectors in the UK and internationally, including general construction, transport, communications, process plant, oil, gas, nuclear and renewables.