John E. Griggs and Sons Limited v High Firs Penthouses Limited [2023] EWHC 2231 (TCC) Pepperall J.
A freezing order in relation to an adjudication enforcement claim to prevent the sale of a final unsold
unit, the subject of the works, was refused. The purpose of the disposal was to realise an investment, not to evade judgment. Further, it would not have been ‘just and convenient’ to grant a freezing order, when this may have caused High Firs to lose a sale, and where Griggs had ‘ample time’ to seek less draconian relief against High Firs by way of a charging order.
Effect of substantial Part 8 application on Part 7 – Compliant final date for payment – Hybrid payment and pay less notices
Lidl Great Britain Ltd v Closed Circuit Cooling Ltd t/a 3CL [2023] EWHC 2243 (TCC) HH Judge Stephen Davies sitting as a High Court Judge judgment 11 September 2023
Issues as to jurisdiction and natural justice were potential defences to, and would be heard at the same
time as, enforcement. Part 8 proceedings relating to matters allegedly wrongly decided by the
adjudicator would only be heard at the same time as Part 7 if pre reading and hearing time allowed, and
disposal and right to payment of the award would not be unduly delayed. It was held on the Part 8
application that the final date for payment must be a period certain from the due date and cannot be set by reference to an event (s.110) (1)(b) of the Act). A payer’s notice entitled as a pay less notice (PLN)
and purporting to deduct liquidated damages as well as sums for defective work was a PLN not a
payment notice; since the amendments to s.110 and s.111 of the Act, the two notices could not be
combined. The court also considered whether various payment requirements were conditions precedent
to payment and determined that in the absence of clearly expressed provision, they were not.
Unconscious Bias – Deployment of without prejudice materials AZ v BY [2023] EWHC 2388 (TCC), Constable J., judgment 27 September 2023 The adjudicator was asked to look at without prejudice (WP) correspondence by a party seeking to
persuade him that a contract had been formed in consequence of negotiations conducted under the WP
umbrella. In this case the WP material did not result in a concluded agreement replacing the original
dispute about which the parties had been negotiating. The court held a decision-maker, having seen the
WP material, must then assess their ability to go on to decide the remaining dispute fairly, in accordance
with the principles which govern apparent bias and the rules of natural justice. The court concluded that
a fair-minded and informed observer looking at all the circumstances of the case, would consider that
there was a real possibility that viewing the WP material meant the adjudicator was unconsciously biased. The adjudicator ’s decision could not therefore stand.
Natural Justice – Failure to consider a line of defence
3
Made with FlippingBook flipbook maker