2) Jurisdiction - order for payment of sum due to responding party: WRW Construction Limited v Datblygau[9]: Davies Developments Limited [2020] EWHC 1965 (TCC) HHJ Andrew Singer QC 23 July 2020 The claimant WRW applied for summary judgment to give effect to an adjudicator’s award in its favour. The case was unusual in that WRW had been the responding party in the adjudication in which the defendant DDD had been seeking payment of £3.3m pursuant to clause 8.7 of a JCT 2011 Design and Build Contract for WRW to design and build nine dwellings on a site in Twickenham. This was the third adjudication between the parties in the second of which it had been decided that the contract was validly terminated by the DDD in mid-2018. In the third adjudication, the adjudicator had to decide what was due on DDD’s claim pursuant to clause 8.7 for the post termination final account. He arrived at a negative value in the sum of –£568,597.32. WRW now contended that it was due this sum either as awarded by the Adjudicator or as a necessary consequence of the award. DDD opposed the application on two grounds: first that the adjudicator had made no such award nor was he empowered to do so; or that the doctrine of ‘merger’ applied. If judgment was granted, DDD asked for a stay of execution. The court reminded itself that it was for WRW to demonstrate there was no reasonably arguable defence to the claim.
The court did accept that the adjudicator had not given any, or any adequate, reasons, for his decision on the point, but they did not consider such failure to be material. On an objective and reasonable understanding of the sub-contract/joint venture point, it could only have affected the valuations on two issues (worth under £15k, the total amount in dispute being over £1m). Further, MWH’s argument that the companies were sub-contractors was so lacking in substance or evidence that it could have had no material impact. If contrary to that finding, the failure had been material, the court would have severed the affected part of the decision and enforced the remainder endorsing the flexible and pragmatic approach adopted in another recent Scottish case.[8]
Comment
It is usually implicit in deciding where the money goes and how much, that the adjudicator must have considered every defence. Still, adjudicators are well advised to deal explicitly, however briefly, with every defence put before them. [8] Dickie & Moore Ltd v McLeish and others (No 2) [2019] CSOH 87; upheld on appeal on severance [2020] CSIH 38 [9] Datblygau (pronounced dad’blug’uy) means ‘developers’
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