The Notice of Adjudication under the heading "Claim and Relief" at Paragraphs 19 and 20 stated: " 19. DDD [the Defendant] is entitled to and claims payment from WRW [the Claimant] of the sum of £3,345,790.40 (or such other sum as the Adjudicator shall determine is owed by WRW to DDD) pursuant to Clause 8.7 and/or as damages for breach of contract. 20. DDD invites the Adjudicator to determine the sums due and payable by WRW to DDD and to order payment of such sum by WRW to DDD within 7 days of his/her decision (or such other period as he/she shall determine)." Clause 8.7 of the Contract involved the carrying out of a valuation exercise pursuant to Clauses 8.7.4 and 8.7.5.
In the (revised) Award under the heading "Final Assessment of the Claim" the adjudicator had said: "I DECIDE AND FIND that my assessment of the total value of the account due to [sic] Clause 4.7.4.1 is an amount due as a debt from DDD to WRW as is permitted by Clause 8.7.5 in the sum of £568,597.32." That finding was in accord with the Contract's clear effect i.e. that whatever sum was found due under clause 4.7.4.1 to either the Contractor or Employer was due to that party as a debt.
WRW’s Particulars of Claim included the following relief:
"An order that DDD pay to WRW £568,597.32 (plus the applicable VAT) in accordance with the Decision or the revised Decision or as a debt; alternatively judgment for damages in the same sum." It was agreed that the Adjudicator had jurisdiction to value the post-termination final account, but no jurisdiction to award a payment to WRW. The parties agreed that the sole issue which the Court had to decide was whether in the light of a binding valuation exercise by the Adjudicator, WRW was entitled to be paid the sum claimed in accordance with that valuation. DDD submitted that the Court could not order payment on the basis of the Award because, without a valid order for payment from an Adjudicator, payment now would involve the Court making a final determination on the merits of the post- termination valuation account which would bar any attempt to reclaim overpayments in subsequent litigation.
In its Response at Paragraph 33 WRW said:
"The post- determination final account in accordance with Clause 8.7.4 of the Contract leads to a position in which DDD is indebted to WRW. Whilst WRW accept that the Adjudicator has no jurisdiction to order payment to be made to WRW, the Adjudicator has been asked by DDD to value the post-termination final account. It is respectfully submitted that the Adjudicator should find that the proper value of the post- termination final account is as set out above. Put another way, the Adjudicator should conclude that the sum due and payable by WRW to DDD is – [minus] £695,035.63." proper valuation of the It was accepted by WRW both in the adjudication and in court, that the Adjudicator did not have jurisdiction to order a payment of money from DDD to WRW. What was being said by WRW was that the sum claimed was due as a result of the adjudicator’s valuation and finding.
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