Yes, but not as a shortcut around an adjudicator’s decision. The Court of Appeal’s judgment in A & V Building Solutions Ltd v J & B Hopkins Ltd [2023] EWCA Civ 54 confirms that a party can start Part 8 court proceedings while an adjudication is still running. It also makes clear that declarations capable of undermining the adjudication are exceptional, and that the sensible order is normally to address enforcement of the adjudicator’s decision first, then deal with the Part 8 claim.
The dispute shows why parallel process can become “double trouble”: both sides pursued overlapping procedures, the first award was not paid, a later final-account adjudication reversed the immediate financial position, and significant court time was spent on questions that ultimately became financially academic.
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What happened in the Hopkins dispute?
J & B Hopkins Ltd (JBH) was the main mechanical and electrical contractor on the Moulsecoomb University Project in Brighton. In December 2019 it subcontracted part of its work to A & V Building Solutions Ltd (AVB) for a reported subcontract price of £368,000.
The immediate dispute concerned interim payment application 14. Building’s 24 March 2023 account reported that AVB’s application claimed £601,000 gross and £211,773 net due. JBH’s pay less notice said that nothing was payable and alleged that AVB had already been overpaid by £69,000. Those figures describe the parties’ contemporaneous application and notice; they are not all findings that the Court of Appeal adopted as final facts.
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AVB called for an adjudicator on 17 November 2021. While that adjudication was underway, JBH issued Part 8 proceedings in the Technology and Construction Court (TCC) on 2 December 2021. JBH sought declarations about the validity of application 14, its own payment notice and whether AVB was entitled to payment.
On 19 January 2022 the adjudicator decided that application 14 was valid. The adjudicator ordered a net further interim payment of £138,010.86 to AVB, together with interest, costs and adjudicator’s fees. JBH did not pay that decision. On 12 April 2022 the TCC judge granted declarations in JBH’s favour without materially addressing the first adjudication decision. AVB appealed.
The Court of Appeal handed down judgment on 27 January 2023. It rejected the idea that JBH had no legal ability to bring the Part 8 claim simply because the adjudication was in progress. However, it criticised the parties’ failure to follow the practical discipline of adjudication and explained how overlapping proceedings should ordinarily be managed.
Timeline of the parallel proceedings
| Date | Event | Why it mattered |
|---|---|---|
| December 2019 | JBH subcontracted part of its M&E work to AVB for £368,000. | Established the contractual relationship behind the later payment dispute. |
| Interim application 14 | AVB claimed £601,000 gross and £211,773 net, according to Building; JBH’s pay less notice said nothing was due and alleged a £69,000 overpayment. | These were the competing payment positions that went to adjudication and Part 8. |
| 17 November 2021 | AVB called for an adjudicator. | The statutory adjudication process began. |
| 2 December 2021 | JBH issued Part 8 proceedings while the adjudication remained underway. | The court claim overlapped with the issues before the adjudicator. |
| 19 January 2022 | The adjudicator found application 14 valid and awarded AVB £138,010.86 net, plus interest, costs and fees. | That decision was intended to have immediate effect. |
| 12 April 2022 | The TCC granted declarations sought by JBH without materially addressing the adjudicator’s decision. | AVB appealed because the declarations could undermine the payment award. |
| 27 January 2023 | The Court of Appeal handed down judgment in A & V Building Solutions Ltd v J & B Hopkins Ltd [2023] EWCA Civ 54. | The court clarified the relationship between adjudication, Part 8 and enforcement. |
| After the first decision | A final-account adjudication found AVB owed JBH £82,956.88. That award was also unpaid. | The competing unpaid awards left a stalemate and made the appeal financially academic. |
What did the Court of Appeal decide?
Parallel proceedings were legally possible
The Court of Appeal did not hold that an adjudication automatically prevents a party from issuing court proceedings. The court therefore dismissed the challenge to JBH’s ability to bring its Part 8 claim. A party may have a legitimate reason to seek a declaration from the court while an adjudication is continuing, particularly where a discrete legal issue needs determination.
That conclusion is narrower than saying that every overlapping claim is appropriate. Jurisdiction to issue proceedings and the court’s decision about whether, when and how to hear them are different questions. A Part 8 claim can be procedurally available yet still be postponed, limited or dealt with only after the adjudicator’s decision has been addressed.
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Declarations that undermine an adjudication are exceptional
The Court of Appeal warned against using Part 8 to obtain a final declaration on the same payment issue in a way that neutralises the adjudicator’s temporarily binding decision. Construction adjudication is designed to provide a quick answer and maintain cash flow during a project. If a party could routinely obtain a court declaration before paying, the statutory mechanism would lose much of its practical force.
The judgment therefore treats declarations capable of displacing or undermining an adjudicator’s decision as exceptional. The fact that a party believes the adjudicator was wrong, or that the court might eventually reach a different answer, is not by itself a reason to bypass the award.
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Enforcement normally comes first
The usual case-management sequence is to deal first with the claim based on the adjudicator’s decision and then consider the Part 8 proceedings, if they still need to be determined. In practical terms, a party resisting payment should expect the other side to seek enforcement and should not assume that an issued Part 8 claim automatically suspends the obligation to comply.
The court recognised a limited possibility of handling a straightforward, self-contained Part 8 point at the same hearing as enforcement. That is most defensible where the parties agree, the issue is genuinely discrete and dealing with it will add no time or complexity to the enforcement application. It is not a general licence to turn an enforcement hearing into a full trial of the underlying dispute.
“The guiding principle of construction adjudication, namely ‘pay now, argue later’, has been comprehensively ignored by both parties in this case.”
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Lord Justice Coulson, A & V Building Solutions Ltd v J & B Hopkins Ltd [2023] EWCA Civ 54
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Why did the procedure become so problematic?
The adjudication and Part 8 claim pursued the same immediate question
AVB’s adjudication asked whether application 14 generated a payment entitlement. JBH’s Part 8 claim sought declarations about the validity of that application, the payment notice and AVB’s entitlement. Although the legal routes were different, the practical subject matter substantially overlapped.
That overlap created a risk that the court’s declarations would decide, or effectively decide, the very payment question the adjudicator had been appointed to answer. Once the adjudicator issued the £138,010.86 decision, the risk became concrete: a court order that treated the application as invalid could deprive the award of its intended interim effect.
The first award was not paid
Adjudication decisions are generally binding unless and until they are revised in later proceedings or another adjudication. The system’s speed depends on compliance first and a later challenge if necessary. JBH did not pay the first award, and the TCC declarations were obtained without materially addressing that unpaid decision. The Court of Appeal regarded that sequence as contrary to the practical discipline the process requires.
The later final account changed the financial picture
A subsequent adjudication on the final account found that AVB owed JBH £82,956.88. That later decision was also unpaid. As a result, the parties were left with competing sums and no straightforward payment outcome. The Court of Appeal described the appeal as financially academic in that context: the later accounting position meant that simply restoring the first interim payment would not resolve the parties’ overall financial relationship.
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Repair common Windows errors and clear accumulated junk for a smoother, more stable PC - no reinstall needed.Free scan · no reinstallCan a contractor start court proceedings during an adjudication?
Yes. The Hopkins judgment does not create a prohibition on parallel proceedings. It does, however, make the consequences of doing so predictable enough for parties to plan around.
- Issuing is not the same as winning priority. A Part 8 claim may be accepted for issue, but the court can control its timing and insist that enforcement is dealt with first.
- Overlap matters. The closer the Part 8 declarations are to the question before the adjudicator, the stronger the case for treating the court claim as exceptional or postponing it.
- Payment is not ordinarily optional. An adjudicator’s award should normally be paid while any final challenge proceeds.
- A discrete legal point may be different. If the issue is self-contained, agreed and capable of being decided without delaying enforcement, the court may deal with it alongside enforcement.
- Case management is central. The court will look at whether the proposed route preserves the adjudication’s utility or turns an expedited process into a preliminary trial.
A practical decision framework for parallel Part 8 proceedings
| Question | If the answer is “yes” | Likely procedural consequence |
|---|---|---|
| Is the immediate objective to secure or resist payment of an adjudicator’s award? | The matter concerns interim enforcement. | Expect enforcement to be addressed before the wider Part 8 claim. |
| Does the Part 8 claim seek a final declaration on the same payment issue? | The court declaration could undermine the award. | Use of Part 8 is exceptional and may be postponed or limited. |
| Is there a genuinely self-contained point that does not require examination of the adjudication merits? | The issue can be decided without turning the hearing into a trial. | The court may consider it with enforcement, especially if both parties agree. |
| Would hearing the Part 8 claim add time, evidence or argument to enforcement? | The two procedures would become procedurally entangled. | Separate the hearings and preserve the pay-now-argue-later sequence. |
| Has a later adjudication changed the net account position? | The parties may have reciprocal or competing awards. | Obtain advice on enforcement, set-off and sequencing; do not assume the earlier award disappears. |
What each party should do in practice
Before starting an adjudication
- Identify precisely whether the dispute concerns an interim payment, a final account, notice validity, valuation or another contractual issue.
- Preserve the payment application, payment notice, pay less notice, contract amendments, programme records and relevant valuation material in a coherent chronology.
- Check the adjudication provisions in the contract and any statutory requirements before referring the dispute.
- Consider whether a proposed court declaration would overlap with the question being referred. If it would, document the separate purpose of any court claim rather than presenting it as a substitute for adjudication.
While the adjudication is underway
- Continue preparing the adjudication response even if court proceedings have been issued. Issuing a Part 8 claim does not, by itself, stop the adjudicator’s timetable.
- Tell the court and the adjudicator about the overlapping process. Transparency allows the court to manage the proceedings without inconsistent directions.
- Do not assume that the court claim gives permission to withhold an award. If the adjudicator decides payment is due, plan for compliance while reserving rights to challenge later.
- Keep any proposed Part 8 issue tightly defined. A claim that requires the court to re-run valuation evidence or decide the merits of the adjudication is unlikely to be suitable for an expedited declaration.
If the other party issues Part 8 proceedings
- Check whether the requested declarations would effectively nullify an existing or imminent adjudication decision.
- Seek directions that protect the adjudicator’s decision and place enforcement before the overlapping claim where appropriate.
- Explain specifically what additional evidence, hearing time or factual investigation the Part 8 claim would require. General objections are less useful than a concrete case-management proposal.
- Consider whether a genuinely discrete issue can be agreed for determination at the enforcement hearing without delaying payment.
If an adjudicator’s decision is not paid
- Review the decision, the contract and any jurisdictional objections promptly.
- Assess whether enforcement proceedings should be issued and what evidence is needed to show the decision and the failure to comply.
- Pay or seek payment of the award unless there is a legally recognised basis for resisting enforcement. A pending Part 8 claim is not automatically such a basis.
- Reserve the right to pursue a final account, repayment or other substantive challenge in the appropriate later process.
- Coordinate any later adjudication so that it does not create avoidable duplication or conflicting relief.
Common misunderstandings corrected by the case
“Part 8 is forbidden during adjudication”
That is too broad. The Court of Appeal upheld the legal availability of JBH’s Part 8 proceedings. The issue was not jurisdiction to issue, but whether the claim should be allowed to overtake or undermine the adjudication and how the court should manage the sequence.
“Issuing Part 8 suspends the award”
It does not. The judgment’s practical guidance points in the opposite direction: enforcement should ordinarily be dealt with first, preserving the adjudicator’s temporarily binding decision while any final argument continues.
“An adjudicator’s figure is the final account”
It is not necessarily final. The first award to AVB was an interim payment decision. A later final-account adjudication found £82,956.88 due from AVB to JBH. Interim and final decisions can therefore produce different net positions, which is one reason the law permits later proceedings without treating the first award as optional.
“The figures in this case establish normal construction-payment amounts”
They do not. £368,000, £601,000, £211,773, £69,000, £138,010.86 and £82,956.88 are case-specific figures from this dispute, not market statistics or benchmarks.
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What the judgment means for project teams
For main contractors, the temptation in a difficult payment dispute is to seek a court declaration that a subcontractor’s application or notice is invalid before money leaves the account. Hopkins shows the risk in that strategy: a court claim can be issued, but an enforcement application may still take priority and the failure to pay can become the central criticism.
For subcontractors, the decision reinforces the value of a prompt adjudication referral and a clear enforcement plan. A court claim launched by the paying party does not necessarily remove the need to pursue the adjudication or enforce its award. The subcontractor should be ready to explain why the Part 8 claim overlaps, what relief is needed immediately and why the adjudicator’s decision should remain effective.
For advisers and project administrators, the case makes payment records particularly important. Application numbers, notice dates, stated sums, contractual deadlines and the distinction between interim and final accounts should be recorded so that the court can see exactly what issue belongs in which procedure.
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The broader lesson is procedural rather than a new jurisdictional rule. Courts retain control over their proceedings, parties may have more than one route available, and the proper order will depend on the overlap, the relief sought and the time required. But the default remains the one Lord Justice Coulson identified: pay the adjudicator’s decision now and argue about the ultimate account later, unless a court directs otherwise.
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