J & B Hopkins Limited v A & V Building Soltuions Limited [2023] EWHC 301 (TCC)

“73. After I had completed most of this judgment in draft, I received from the Claimants' Counsel a Note I had requested on a further issue which arose in the course of the hearing as to the Court's power to grant a right of audience on an ad hoc basis to a party's McKenzie friend when that party is a body corporate rather than an individual acting in person. “74. Though no authority has been found, that Note (for which I am very grateful) helpfully sets out the applicable framework as regards McKenzie friends. It suggests the conclusion that, given that CPR 39.6 does now allow an employee of a body corporate duly authorised to do so by it to appear at trial on its behalf with the permission of the Court, the Court does have jurisdiction to allow a body corporate the assistance of a McKenzie friend, and in appropriate (and exceptional) circumstances to allow that McKenzie friend a right of audience on an ad hoc basis. The Note also identifies a case where it appears that the Court assumed that to be so: namely, Tracto Teknik GmbH v LKL International [2003] EWHC 1563 (Ch); “75. I agree that the Court has such jurisdiction, as part of its power (in the absence of specific restriction) to regulate its own proceedings and, in circumstances where otherwise the body corporate would have no-one capable of speaking for it, to prevent a failure in the administration of justice (and see also A.L.I. Finance Ltd v Havelet Ltd [1992] 1 WLR 455 at 460-461). I agree further that the Legal Services Act 2007 at Schedule 3 assumes and recognises such jurisdiction (as did its predecessor, the Courts and Legal Services Act 1990) even if it does not expressly confer it. Thirdly, I consider that since the jurisdiction is inherent, neither Rule 39.6 nor Practice Direction 39A is an exclusive and complete code, so that the Court may give permission in exceptional cases even where neither that rule nor the Practice Direction (which prescribes the form of the evidence of authority which must be provided where a company or corporation is to be represented by an employee) has been complied with. “76. In that latter context the Note provided to me very properly referred me to two cases in the Court of Appeal which might be read as having assumed the contrary (that is, that CPR 39.6 and PD 39A provide a complete code): see Watson v Bluemoor Properties Ltd [2003] BCC 382 (particularly paragraphs 7 and 11-15) and Avinue Ltd v Sunrule Ltd [2004] 1 WLR 634 (particularly at paragraph 25). However, it does not seem to me that in either case the issue whether the Court retains jurisdiction in exceptional circumstances to permit someone other than a director or employee to represent a body corporate was directly addressed. I note that it does not appear that the A.L.I. Finance case was cited in either of the two cases. In my view, there is nothing in either of those cases which binds me to hold that the jurisdiction of the Court, as propounded in the A.L.I. Finance case at a time before the CPR, has been restricted by rules intended to introduce, not less but greater, flexibility. I also consider that it is unlikely that the jurisdiction should be so limited in the case of a body corporate, but unconfined in the case of a litigant who is an individual.”

"If the decision was within the Adjudicator's jurisdiction and the Adjudicator broadly acted in accordance with the rules of natural justice, such defendants must pay now and argue later." 14. There are on contested enforcement applications, therefore, two bases only upon which a decision will not lead to summary judgment as the jurisprudence is conventionally understood. These are if the decision was one made without jurisdiction; and the other is if the decision was made in the presence of material breaches of natural justice. Neither of these features are contended for here. 15. The principles of enforcement are subject to two narrow exceptions. They are identified in Hutton v Wilson [2017] BLR 344as well at [4]. The first is an admitted error; the second is a self-contained legal point concerning timing, categorisation or description of payment notices or payless notices, in respect of which the potential paying party has issued Part 8 proceedings seeking a final determination of that or those substantive points. That is dealt with at [5] of Hutton. Neither of those two exceptions apply here either. 16. Another statement which is worth repeating is at [9] in a case called PBS v Bester [2018] EWHC 1127 (TCC), a judgment of Stuart-Smith J, who explained the rationale for this approach by the courts on enforcement, which is as follows: "