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Flexidig Limited v M&M Contractors (Europe) Limited [2021] EWHC 784 (TCC)

16th Apr 2021

In Flexidig Limited v M&M Contractors (Europe) Limited [2021] EWHC 784 (TCC), Roger ter Haar QC, sitting as a Deputy High Court Judge, addressed an application by the Claimant for a worldwide freezing order against the Defendant, a company based outside this jurisdiction (namely in Northern Ireland) which carries out construction operations both within and outside this jurisdiction.

The application arose out of sums due further to a judgment of Mr Justice Waksman dated 11 March 2020 (see judgment here) and other sums due from the Defendant to the Claimant further to orders of the High Court of Northern Ireland.

The Deputy High Court Judge decided that a worldwide freezing order should be granted against the Defendant. That included for unpaid sums owed further to the orders of the High Court of Northern Ireland (i.e. a court in another jurisdiction) as well as an order of that court awarding the Claimant its costs which are in the future to be taxed (i.e. assessed) if their quantum is not agreed between the parties.

The Deputy High Court Judge held that there was a “strongly arguable case” that the Defendant had presented “falsely doctored invoices” to an adjudicator “for the purpose of increasing the amount which [the adjudicator] would find due” from the Claimant to the Defendant.  The Judge also stated that “I have no hesitation in finding that a strongly arguable case has been made out” that the Defendant’s Chief Executive Officer “was not telling the truth about the invoices in his affidavit” before the Court.

The judgment is notable for its extension of the policy expressed in Great Station Properties SA v UMS Holdings Ltd [2017] EWHC 3330 (Comm), by Teare J at [63], namely the policy “to enforce judgments (and particularly so where the judgment enforces a London arbitration Award) so that freezing orders can, in an appropriate case, be granted after judgment”.

The Deputy High Court Judge held at [93]:

Mr Choat submits, and I agree with his submission, that with regard to “particularly so where the judgment enforces a London arbitration Award” the same goes for a judgment enforcing an adjudicator’s decision (especially one requiring payment in respect of a payment application, ie. triggering the payment regime in the Housing Grants, Construction and Regeneration Act 1996).

This should assist any other judgment creditor who needs a freezing order to secure the payment of a judgment which enforces an adjudicator’s decision.

Rupert Choat (instructed by Gateley Legal) for the Claimant

Phillip Patterson (instructed by Quigg Golden Limited) for the Defendant

To read the full judgment click here.

 

 





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