Kier Regional Ltd (t/a Wallis) v City & General (Holborn) Ltd & Ors, Court of Appeal - Technology and Construction Court, October 17, 2008, [2008] EWHC 2454 (TCC)

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Kier Regional Ltd (t/a Wallis) v City & General (Holborn) Ltd & Ors, Court of Appeal - Technology and Construction Court, October 17, 2008, [2008] EWHC 2454 (TCC)

Neutral Citation Number: [2008] EWHC 2454 (TCC)

Case No: HT-06-10

IN THE HIGH COURT OF JUSTICE

TECHNOLOGY AND CONSTRUCTION COURT

QUEENS BENCH DIVISION

St Dunstan's House

133-137 Fetter Lane

London

EC4A 1HD

Date: 17/10/2008

Before :

THE HONOURABLE MR JUSTICE COULSON

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Between :

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Ms Hilary Stonefrost and Mr Adam Constable (1st and 2nd October), instructed by Messrs Taylor Wessing , for the Claimant / Applicant

Mr Nicholas Baatz QC (11th September and 1st October), Mr Nicholas Peacock (1st and 2nd October) and Mr Manus McMullan (2nd October only), instructed by Messrs Clyde and Co, for the Defendant/ Respondent

Mr Richard Morgan, instructed by Messrs Kidd Rapinet, for the Third Parties

Hearing dates: 11th September, 1st and 2nd October 2008

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Judgment The Honourable Mr Justice Coulson :

A. INTRODUCTION

1. This is an application by Kier Regional Limited (``Kier'') to make final the interim third party debt orders granted by Akenhead J on 4th August 2008 against Cambridge Gate Properties Limited (``Cambridge'') and Temple Guiting Manor Limited (``Temple''). There is also a cross-application by the defendant in these proceedings, City and General (Holborn) Limited (``Holborn'') for a stay of execution of the judgment given against them, and in favour of Kier, by Jackson J (as he then was) as long ago as 6th March 2006.

2. Both applications are disputed and raise a number of issues, the most significant of which is the proper exercise of the court's discretion under CPR part 72 and RSC Order 47 in circumstances where:

a) The judgment debt arises out of the enforcement of an adjudicator's decision;

b) The enforcement methodology in question, namely a third party debt order, would, by its very nature, affect those who were not parties to the original construction contract;

c) The adjudicator's decision that led to the judgment debt has always been disputed and is the subject of a major arbitration due to commence on 27 October 2008.

3. The particular issues that arise for determination on these applications are as follows:

a) Is there a debt due and owing from Cambridge to Holborn and/or from Temple to Holborn? It is common ground that, if I concluded that there was no such debt due and owing, Kier's application must fail at that stage.

b) If there are such debts, how should the co...

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