“The unavoidable inference is that PROJEN decided, for professional reasons, that they could not continue to act as Project Manager in these circumstances and Mr Barton resigned, even though he remained involved behind the scenes assisting Mr Boerboom and his team with the administration side in terms of paper work and so on. For the avoidance of doubt, I find as a fact that this is why PROJEN resigned. Mr Boerboom’s evidence makes clear that this interference by him must have started very shortly after he arrived, and he must have purported to act as Project Manager behind the scenes even before PROJEN resigned.”
“the source of immense difficulties in this litigation. The schedule and its appendices run to considerable length. The schedule is not well constructed and I suspect that it has not been drafted by either solicitors or counsel. The more closely one studies schedule 4, the more difficult it becomes to deal with the claims.”
“5. …. This litigation has gone on far too long. The parties are incurring excessive costs. The longer this litigation drags on, the greater will be those costs and the more disproportionate they will become to the sums in issue. 6. Two years ago, when giving judgment on certain preliminary issues, I ventured the suggestion that once the questions of principle were resolved (such as which party had repudiated) the parties may wish to seek a commercial resolution of the quantum issues. With a bit of goodwill on both sides and with the assistance of their advisors or a skilled mediator independent of the court, the parties should be able to sort out for themselves all matters of valuation. If that suggestion had been heeded, this litigation could have been brought to a fair and reasonable conclusion during 2006 at a cost which was proportionate to the sums in issue. 7. In the event, however, that suggestion was not heeded. This litigation has dragged on for a further two years at what I surmise must have become disproportionate cost. There has been a myriad of amendments, re-amendments, re-re-amendments, applications, cross-applications and appeals. When one stands back from the detail and looks at the overall picture, the parties may care to reflect whether much has been achieved on either side as a result of all these expensive endeavours. But that is a matter for the parties, not for me. 8. It is the wish of the parties that this court should, in effect, value every piece of steel work in Wembley Stadium and every item of damages from the Scott Schedule. I cheerfully undertake this task, because that is the parties' wish and because the parties are entitled to the decision of this court upon the matters in issue. Nevertheless, in discharging this duty I must manage the litigation in accordance with the over-riding objective.”
“225. I appreciate that any exercise which requires an analysis of the correct value of MMT’s contract works is something that could, potentially, involve both parties in further wasteful and expensive litigation, if that amount cannot be agreed between them. Mr Brownlee’s exercise was done as though the contract had been validly terminated pursuant to its terms, that did not occur and so his exercise (which is challenged in any event) will be redundant.Further wasteful and expensive litigation ought to be avoided if possible. Valuation of an account, if it cannot be agreed, should at least be capable of being distilled into a small number of discrete issues. The amount of court time available for the quantum element of this trial will be no more than four days. Judicial resources are not infinite. However, with the necessary degree of realism on both sides such differences should be capable of resolution.”
“1. The purpose of this Scott Schedule is to assist the Judge identify the parties’ respective valuations and how they differ. 2. In order to do this, the valuations given by the parties to different items of the account are set out side by side. It is hoped that this will enable the Judge identify where the major points of difference are. 3. The parties have also identified certain issues which will need to be determined as part of the Judge’s assessment of the value of the PMIs. Although the wording of those issues has been agreed between the parties: (i) This agreement is without prejudice to their pleaded positions. (ii) The issues identified are not necessarily exhaustive of the dispute between the parties. Instead, there may be other subsidiary issues which need to be determined. The identification of an issue is intended only to assist the Judge identify the main reason why the parties’ valuations are different.”
“For those parts of the account where there are a large number of elements, the “Analysis of Difference” column has filters applied to it. This will enable the reader to select only those PMIs which are affected by a particular issue by filtering out the “blanks” …… The claims PMIs do not have “issues” columns in view of the fact that the parties have discussed these considerably during the hearing and submissions, and they have been subject to individual consideration by the parties’ experts.”
“The Particulars of Claim do not presently include for the business losses and disruption arising from ICI’s repudiation but which are substantial and do come within the scope of conventional principles.”
“The overriding objective (of the CPR) is that the court should deal with cases justly. That includes, so far as is practicable, ensuring that each case is dealt with not only expeditiously but also fairly. Amendments in general ought to be allowed so that the real dispute between the parties can be adjudicated upon provided that any prejudice to the other party caused by the amendment can be compensated for in costs, and the public interest in the administration of justice is not significantly harmed.”
“Firstly, there is a contractual issue: ie is it in fact open to ICI as a matter of contract to seek to re-open not just the items that have always been disputed, but items that were once agreed. (In the alternative, MMT contends that in an appropriate case ICI is estopped from reneging upon the parties’ agreement as to how to proceed.)”
“The Adjudicator may • review and revise any action or inaction of the Project Manager or Supervisor related to the dispute and alter a quotation which has been treated as having been accepted, • take the initiative in ascertaining the facts and the law related to dispute • instruct a Party to provide further information related to the dispute within a stated time and • instruct a Party to take any other action which he considers necessary to reach his decision and to do so within a stated time.”
"It does not, however, follow from the fact that a certificate is a condition precedent that the absence of a certificate is a bar to the right to payment. This is because the decision of the engineer in relation to certification is not conclusive of the rights of the parties, unless they have clearly so provided. If the engineer's decision is not binding, it can be reviewed by an arbitrator (if there is an arbitration clause which permits such a review) or by the court. If the arbitrator or the court decides that the engineer ought to have issued the certificate which he refused to issue, or to have included a larger sum and a certificate which he did issue, they can, and ordinarily will, hold that the contractor is entitled to payment as if such certificate had been issued and award or give judgment for the appropriate sum." 69. Later in his judgment, when discussing Beaufort Developments (NI) Limited v Gilbert-Nash (NI) Limited[1999] 1 AC 266 , Dyson LJ noted that the fact that the power to open up, review and revise certificates was expressly conferred on an arbitrator was not to be construed as removing the court's unlimited power to do the same. He confirmed that the court had always had the inherent power to determine the rights and obligations of the parties. 70. Henry Boot is therefore authority for the proposition that the court can decide the 'true' value of any certificate, notice or application and that, as part of that process, it has an inherent power to open up, review and revise any existing certificates, notices or applications. Mr Speaight properly conceded that, if the court had the power to do something, then so too did an adjudicator. I agree: in any case where the parties have conferred upon an adjudicator the power to decide all disputes between them, the adjudicator has the same wide powers as the court. In this case, therefore, I consider that, in line with Henry Boot, the court (and/or an adjudicator) has the power to decide the 'true' valuation of interim application 22. 71. The second reason why, as a matter of first principles, I have concluded that the employer can start a second adjudication dealing with the 'true' valuation is linked to the first, but it arises from the statutory power of the adjudicator. 72. Consider first s.108(1) of the 1996 Act. That provides: "
"The adjudicator shall decide the matters in dispute. He may take into account any other matters which the parties to the dispute agree should be within the scope of the adjudication which the matters under the contract which he considers are necessary connected with the dispute. In particular, he may – (a) Open up, revise and review any decision taken or any certificate written by any person referred to in the contract unless the contract states that the decision or certificate is final and conclusive; (b) Decide that any of the parties to the dispute is liable to make a payment under the contract (whether in sterling or some other currency) and, subject to section 11(9) of the Act, when that payment is due and the final date for payment; (c) Having regard to any term of the contract relating to the payment of interest decide the circumstances in which, and the rates at which, and the periods for which simple or compound rates of interest shall be paid."
“ICI and/or the professional team acting on ICI’s behalf, agreed to the different items during the project for good reason: because the rates and/or measures and/or sums being agreed were correct, or appeared to be so. What ICI now seeks to do is to challenge such items, but (a) on the basis of the evidence of individuals who had nothing to do with the project until after the event; (b) without any evidence that Mr Barton was incompetent, or unaware of the nature of the task.”
“[23]….I agree with the Court of Appeal that the obvious basis for recognition of this right is by way of implication arising from the Scheme provisions which are themselves implied into the construction contract. I prefer to express the implication in the way I have, because it focuses on the core element of Aspect’s claim which is to recover an alleged overpayment…. [24] I emphasise that, on whatever basis the right arises, the same restitutionary considerations underlie it. If and to the extent that the basis on which the payment was made falls away as a result of the court’s determination, an overpayment is, retrospectively, established.”
“[26] When it comes to arbitration (and, in terms of Option W2, adjudication is no different), the arbitrator has power to review and revise any actions or inactions by the Project Manager. He can therefore correct mistakes in any assessment and payment certificate. It follows that he can open up the whole question of PWDD, Defined Cost and Disallowed Cost and reach conclusions different (perhaps very different) from those reached by the Project Manager. To do so he will require to see the accounts and records kept by the Contractor under clause 52.2. But unless and until he has corrected the Project Manager's payment certificate, that certificate stands. In those circumstances, it seems to me, in agreement with the findings of the arbitrator and the submissions of Mr Lake, that the onus must be on the party seeking to persuade the arbitrator to depart from the assessment of PWDD made by the Project Manager. In so far as the Contractor (RBG) seeks further payment, the burden is on him. In so far as the Employer (SGL) seeks to argue that the Project Manager's assessment is too high, it must shoulder the burden.”
“I was not aware of Andy Barton being unhappy as project manager. His resignation came to me as a surprise. He then explained to me that he had personal problems at home which meant that he could not dedicate as much time as he wanted to his work at Ashington”
“37. Mr Boerboom was brought to the project in July 2014. He was appointed Project Manager in October 2014 after PROJEN resigned, although the validity of that appointment is challenged by MMT. In his first witness statement he stated in paragraph 3 that he became Project Manager “shortly after”
“I did not interfere in the work of Andy Barton and/or Jeff Conrad in dealing with the MMT situation”
“since September we followed the line not to pay until an agreement with MMT was made regarding the welding quality issues.”
“Q: When you asked [MMT] to leave the project, it must have been fairly obvious that that was going to have a fairly dramatic effect on the staff, on the employees, on the business to eject them from such a significant project. Is that something you thought about? A: They were not responding, they were delaying resolution, they were to me exaggerating the claims, exaggerating the work to be paid, and they were seeking adjudication. So I would certainly not be prepared to work with them any more.”
“I relied on Mr Jeff Conrad and Andy Barton to deal with the contract contractually. As you've already mentioned just now, there were many contracts in the project and I looked over in general, but I let the people who were dealing with the contracts act on the contracts, so for Merrell, this was Andy Barton, Mr Andrew Barton, and Mr Jeff Conrad”
“Henk, let's agree to this, don't worry about this, we will -- this will all be subject to assessment on the final account.”
“Hi all, please find attached the updated PMIs based on the following: - Agreed quantities - Agreed rates for valves…. - Agreed bracket centres for PMI 29 and 31 at 1.2m - We will remove wastage which will be discussed separately - We have used a pump rate for skis and filters for now - We have removed the bond element for prelims which will be replaced by a separate PMI - Bracket price for all PMIs at£29.79 and secondary supports to be agreed separately.”
“…..Mr Barton was no longer on the site when we were engaged. Q. So Mr Barton didn't provide you any input at all? A. Very little. We had a meeting with Mr Barton in his offices in Warrington, but the information that was forthcoming was very sparse. Q. But neither Mr Hall nor Mr Boerboom thought fit to mention that there had been this two-day discussion about rates, about measures, and so on? A. No. Q. Do you feel that undermines the exercise [the Final Assessment] at all? A. Well, I think there were several agreements that were made that I wasn't aware of, which is quite obvious when you read the final assessment. Q. Okay. So to that extent the exercise is, again, redundant, agreed? A. Elements, perhaps.”
“Overall, had the Final Assessment used these MMT PMI valuations as the starting point, there would have simply been much higher deductions necessary to arrive at the final assessment figure.”
“I would like to inform you that we are proceeding as discussed and planned with you regarding Blake Newport’s involvement with the final assessment in a.o. the MMT case. Decision making in this is fully with me (time, money and resource). I am OK with the plan we made and the resource allocation…..”
“by that point, AkzoNobel had already paid an immense amount of money to [MMT], by virtue of the adjudicator’s decision.”
“I appreciate that any exercise which requires an analysis of the correct value of MMT’s contract works is something that could, potentially, involve both parties in further wasteful and expensive litigation, if that amount cannot be agreed between them. Mr Brownlee’s exercise was done as though the contract had been validly terminated pursuant to its terms, that did not occur and so his exercise (which is challenged in any event) will be redundant. Further wasteful and expensive litigation ought to be avoided if possible. Valuation of an account, if it cannot be agreed, should at least be capable of being distilled into a small number of discrete issues. The amount of court time available for the quantum element of this trial will be no more than four days. Judicial resources are not infinite. However, with the necessary degree of realism on both sides such differences should be capable of resolution.”
“47. Mr Wells also gave evidence about the adjudications and the financial impact upon the company. Adjudication No.1 was commenced in late January 2015, and such was the cash flow position of MMT at that time that a Company Voluntary Arrangement or CVA came to be contemplated by MMT’s Board of Directors in late February/early March 2015. However, when the decision in Adjudication No.1 was issued in MMT’s favour, there was the prospect of a very sizeable cash injection if ICI complied with that decision. Timing became crucial. In what Mr Wells described as “surreal” events, the money was received by MMT, leading (as he said) to enormous relief, followed almost immediately by further tension and difficulty because MMT’s bankers chose precisely that moment to terminate all of its lending facilities and overdraft arrangements without notice. Small and medium companies sometimes complain about the treatment they receive at the hands of their banks. This behaviour must have been a hammer blow to MMT and its directors and employees. It led to certain steps being taken, which I find are not relevant to the liability phase of these proceedings. In the event the CVA was avoided. 48. MMT as a company had acted on a variety of different projects before, including prestigious ones such as the Diamond Light Synchrotron facility at Didcot, and the Harrods department store. Mr Wells relied upon this to show that MMT is capable of high quality work, and although a Small or Medium Enterprise or SME (an expression for companies such as MMT in terms of their economic size), MMT had a sizeable cash surplus earlier in 2014 and appears to have been soundly run. Mr Wells was effectively the decision maker and no doubt found himself increasingly involved in the middle to latter part of 2014 as the commercial problems on the project with the AkzoNobel project management team increased. 49. My view of the quality of evidence provided by Mr Wells is also assisted by the fact that what he wrote at the time, both in letters and e mails, both internally and to the different personnel at AkzoNobel with whom he found himself dealing, was entirely consistent with his evidence. This is usually useful corroboration for the court when considering a witness’ reliability, and was here. 50. Mr Wells gave his evidence openly and frankly, and I am satisfied that he was accurate and reliable in what he told the court. Following ICI’s concession on Issue 1, Mr Wells’ credibility was, if anything, increased; however, regardless of that concession I was satisfied that his evidence was to be preferred. If, in any area, Mr Wells’ evidence differed to that of Mr Brugman and Mr Boerboom, I prefer that of Mr Wells.”
“We have a supplemental note from Gary Kitt which we'd like to rely upon. I'm quite happy to deal with this. I would like to put this to Mr McGrady this afternoon.”
“6. ……ICI has no contractual right to demand the documents from Projen. Mills & Co has had sight of our client's consultancy agreement with Projen to confirm this for itself. We do not therefore understand Mills & Co's reference to it being ICI's 'duty' to seek to secure copies of the documents. Furthermore, the duty to preserve documents only refers to documents within a party's possession and control. In any event, and as set out in our letters to Mills & Co of18 January 2018 , our client has taken all reasonable steps to secure the documents. Notwithstanding this, we have as promised to Mills & Co reached out once more to Projen for these documents. Projen have not responded to this latest request. 7. We have also asked Blake Newport to locate the email from Andy Barton of Projen to John Copley of Blake Newport sent in April 2015 and containing the download link to the documents which MMT has requested. Blake Newport has now located this email (please see Exhibit 2 of JWM4). Moreover, we have contacted the link provider directly and enquired as to the irretrievability of documents downloadable from expired link (please see Exhibit 3 of JWM4). 8. We do not believe there is any more we can do and MMT's application to the court in this regard is not going to advance matters.”
“This e mail is an official instruction to you that any revision of assessments on PMIs with Merit Merrell will need to be signed off by myself and Theo Brugman before they will be included in the certification each month. This goes for upwards and downwards revisions.” 137. In an e mail of reply dated9 October 2014 copied Mr Conrad of ICI and copied to Mr Boerboom and Mr Brugman, Mr Barton stated: “Further to your e mail below and the previous instruction from [Mr Boerboom] and [Mr Brugman] I believe that an amendment to the Contract is now required to give AkzoNobel full responsibility for the contractors. As you are aware Projen plc are named in the Contracts with [MMT and others] as the Project Manager. Under the NEC3 Contract the Project Manager carries a lot of responsibilities in terms of the administration of the Contract. As I am no longer empowered by the Employer to carry out these responsibilities it is, I believe, time to change the Project Manager to AkzoNobel”
“The tenderer shall provide the following schedules of his rates that are applicable to the subcontract works: • Schedule of Rates for Labour • Schedule of Rates for Plant and Equipment • Schedule of Rates for Materials • Daywork Rates”
“Whilst interpretation of the Contract is a matter for the Court to decide, I am of the view that the rates that I propose to use, representing what I believe to be MMT’s actual costs, are more reflective of the true cost to MMT, whereas the ‘Daywork’ rates proposed by MMT would, in my opinion, provide MMT with a windfall.”
“My understanding was that PMIs were issued instructing MMT to carry out, for example, further pipework, and then it would be valued if it could using the schedule of rates, and if there wasn't a rate, the parties would look to agree a different rate.”
“121. ICI instituted an audit of MMT’s account, and this was performed by a practice called Coppa Associates. This was therefore called the Coppa audit. There may have been a hope at AkzoNobel that this would uncover something that could be used against MMT. Instead, it did not, and broadly vindicated MMT’s financial account. In the assessment performed internally by AkzoNobel dated6 January 2015 , when the first round of the Coppa exercise was either completed or nearing completion, Mr Shuttleworth wrote in an e mail the following: “Assuming Coppa are correct and based on invoice value from [MMT], we owe [MMT]£6.12m . The Capex budget allows for£3.2m for further [MMT] spend ….. [AkzoNobel] can only pay [MMT] a maximum of£3.2m .” “Assuming Coppa are correct and based on invoice value from [MMT], we owe [MMT]£6.12m . The Capex budget allows for£3.2m for further [MMT] spend ….. [AkzoNobel] can only pay [MMT] a maximum of£3.2m .”
“One of the things that I think distinguishes my report from Mr Kitt's -- and I note this morning that Mr Kitt said he didn't address every point of every item -- but I focused on what parties were claiming on the one hand and what the defendant was saying on the other hand, and I tried to assess the quantum based upon the arguments of the parties. I certainly didn't understand my instructions to be open up, review and revise everything in the account, even if it's apparently agreed and not in dispute.”
“The issues that the expert will address are: a) The cost of professional advice arising out of the repudiation including the need for that advice and whether those costs are reasonable. b) The cost of management time arising out of the repudiation including the need for that time to have been expended. c) Whether it was necessary for the Defendant to negotiate reduced payments on other projects and whether that action was reasonable. d) The additional cost of financing, credit insurance, lost trade discounts and lost trade rebates arising out of the repudiation. e) Additional tax liabilities arising out of the repudiation.”
“In relation to the foregoing heads of loss, you are instructed to opine both on the quantum of the loss claimed and on the extent to which such losses might be considered, from an accountancy perspective, to arise as a consequence of ICI’s repudiation of the Contract. In particular the extent to which MMT’s financial position post the repudiation of the Contract (and the losses it says flowed therefrom) resulted from the repudiation.”
“Q: So you read that, but then you put it to one side and your thirst for knowledge about accounting matters caused you to forget the detail of it, is that what happened? A. Yes.”
“I understand this paragraph to say that following ICI’s payment of£9.1 million on17 March 2015 , the cash flow position had been resolved.”
“Q: So what you mean, Mr Thompson, is that it is your opinion that Ms Barker does not have the information she needs to fulfil her instructions. This is not something she has agreed, it is your assessment. A. Not in words in the joint statements, but I felt it was implicit for us having to pursue further information to do the work. What we were doing at the time of the joint statement is working consensually. We had, you know -- I think we had four calls. And what I wanted to do as part of the joint statement process in fact was to agree with her an additional disclosure request, so we could exercise some proportionality as to what information we needed. But given that the joint statement was before we did our reports, I felt, and I think Ms Barker would agree, that it formed an important part of the process in getting to what information we'd need to fulfil our report. I wanted to agree with her an additional disclosure request, but because of her instructions she wouldn't agree with me.”
"It is a massive and disproportionate task for our client to extract thousands of invoices and applications for payment to match the project across a detailed report. If your client would like to visit our client's office in order to spot check and audit the project cost detailed report, then facilities can be made available."
“Q: But if one is investigating as to what caused MMT to go into liquidation, one does need to look at their financial position. A. I haven't been asked to investigate why MMT had gone into liquidation. I was told to assume that MMT had gone into liquidation as a consequence of the repudiatory breach.”
“69. ….In my view, this was yet further evidence of unreasonableness, an expert insisting on making criticisms which the Bank have deliberately chosen not to plead. 70. The duties of an independent expert are set out in the well-known passages of the judgment in The Ikarian Reefer[2000] 1 WLR 603 . For the reasons set out above, Mr Vosser did not comply with those duties and I was not confident that he was aware of them or had had them explained. For him, it might be said that The Ikarian Reefer was a ship that passed in the night.”
“As Mr McGrady has already conceded that there was over£100,000 of duplication in the Mop-Up claim, it is submitted that there could also be duplication with the material claimed here; however, without evidence as to what the quantities claimed relate to, there is no way of identifying what is duplication…..”
“This is not a theoretical desktop analysis. So this is based on disruption in the fab shop, so what happens in a fab shop, Projen issue the design, Merit CAD people draw the isos, the isos are delivered to the fab shop, the fab shop decide which ones to do. They take the iso, which has a number of spools on it. One person would be allocated one spool. They will go and get their materials, they will go to and start the manufacture of that spool. That spool is no more than three or four metres long at a maximum and maybe has half a dozen welds on it. So they will start that spool and if it isn't finished that day, it most certainly will be finished the day after because the welds don't take that long, they're not that big spools, it's not big pipe, it's all small pipe. So the analysis that was done was based on the weld information, the weld packs that are now in Clyde & Co's offices, and the information was reviewed and where a spool took more than two days from start to finish to manufacture, and you can see that very clearly from the date that the welds were done, then those spools were said to be disrupted, and that disruption would take many forms, I think as I set out in here, which would include Projen putting the design on hold, Projen changing the design, the valves not being available from ICI to enable us to complete that spool, and, therefore, there was a lot of disruption in the fab shop.”
“Secondly, no claim has been pleaded and no evidence has been adduced to suggest that [ICI] knew that by delaying or refusing payment there was a likelihood of MMT being unable to trade. In Bentley Construction Ltd v Somerfield Co Ltd (2001) 82 Con. LR 163 a contractor claimed damages representing sums withheld by its own debtors as a consequence of the employer’s breaches of contract in deliberately ‘starving’ it of payments in order to force it to cease trading. Once rumours spread of the contractor’s financial difficulties, its debtors postponed payment as a form of self-protection or in the hope that they would never have to pay. Judge Richard Seymour QC struck out the claim.”
“MMT’s explanation – and this is supported to a certain extent by some of the documents obtained on disclosure – for everything that happened is that certain people at AkzoNobel decided to push MMT into insolvency. This was considered in order to achieve a more cost effective outcome for AkzoNobel than would otherwise be the case on this project. ICI’s explanation for what occurred in the autumn of 2014, running into early 2015, is that the work MMT had performed was of quite dreadful quality – one witness spoke of “the worse welding I had ever seen” – and MMT were said to be unable and/or unwilling to resolve such issues. That analysis of the welding quality is advanced by ICI relying upon both evidence of fact and also expert evidence. The allegations by ICI of such widespread defects is challenged strenuously by MMT.”
“I find as a fact that part of the strategy adopted by AkzoNobel/ICI – perhaps from November 2014, but certainly from December 2014 onwards - was one aimed at driving MMT from site. I use the term AkzoNobel/ICI because at the time there were no separate ICI personnel in any decision making roles. All decisions on ICI’s behalf were being made by personnel and senior management at AkzoNobel. The hope was clearly that MMT would simply leave; the fact that MMT’s expectation of a sizeable payment of£2.75 million to MMT (and its non-payment) was potentially going to push MMT close to insolvency was seen as a commercial benefit.”
“26. In a number of the authorities which I have cited above the point has been made that each case must turn on its own facts. Whilst I respectfully agree with that, it does seem to me that there are a number of clear principles which should always govern the exercise of the court’s discretion when it is considering a stay of execution in adjudication enforcement proceedings. Those principles can be set out as follows: a) Adjudication (whether pursuant to the 1996 Act or the consequential amendments to the standard forms of building and engineering contracts) is designed to be a quick and inexpensive method of arriving at a temporary result in a construction dispute. b) In consequence, adjudicators’ decisions are intended to be enforced summarily and the claimant (being the successful party in the adjudication) should not generally be kept out of its money. c) In an application to stay the execution of summary judgment arising out of an Adjudicator’s decision, the Court must exercise its discretion under Order 47 with considerations a) and b) firmly in mind. d) The probable inability of the claimant to repay the judgment sum (awarded by the Adjudicator and enforced by way of summary judgment) at the end of the substantive trial, or arbitration hearing, may constitute special circumstances within the meaning of Order 47 rule 1(1)(a) rendering it appropriate to grant a stay. e) If the claimant is in insolvent liquidation, or there is no dispute on the evidence that the claimant is insolvent, then a stay of execution will usually be granted. f) Even if the evidence of the claimant’s present financial position suggested that it is probable that it would be unable to repay the judgment sum when it fell due, that would not usually justify the grant of a stay if: (i) the claimant’s financial position is the same or similar to its financial position at the time that the relevant contract was made; or (ii) The claimant’s financial position is due, either wholly, or in significant part, to the defendant’s failure to pay those sums which were awarded by the adjudicator.”