Construction Adjudication Cases: Part 5 of 2020

The court found there was no bar on the basis of the authorities cited to the Court enforcing a temporarily binding valuation in an adjudication award by making an order for payment of the monies due as a result of that valuation. Indeed, it would be contrary to principle and established authority for the Court to effectively force a party who had the benefit of an award in its favour to have to commence a further adjudication (to which there was no defence) for the purpose of obtaining an order for payment before returning to the Court if necessary, for further enforcement proceedings. DDD’s second line of defence was based on the doctrine of merger: that if the court gave judgment on a cause of action, it was extinguished such that DDD was prevented from bringing a second set of proceedings for a final determination of the post termination account. The flaw with that contention was that an adjudicator's award was not a ‘judicial decision’ and therefore the doctrine did not apply. In any case it only had temporary effect until the matter was finally determined. Summary judgment on the award was not such final determination. The right to seek such a final determination did not merge with summary judgment on the award. It was not lost. Any sums paid on foot of that valuation were only paid on a temporarily binding basis so as to preserve cash flow. It followed that there was no reasonably arguable defence to the claim for payment of the sum of £568,597.32 and summary judgment was granted.

The court looked the judgment of Lord Mance in Aspect [10] where it was said:

"By providing that the decision of an adjudicator is binding and that the parties shall 'comply with it', Paragraph 23(2) of the Scheme makes the decision enforceable for the time being. It is enforceable by action founded on the contractual obligation to comply with the decision combined, in a normal case, with an application for summary judgment. The limitation period for enforcement will be 6 years from the adjudicator's decision. But the decision is only binding and the obligation to comply with it only lasts 'until the dispute is finally determined' in one of the ways identified.” DDD submitted that before a Court could order payment of a money sum due to WRW, there needed to be a fourth adjudication to give effect to the valuation of the post- termination final account reached in the third adjudication.

They relied on Harrington [11] at Paragraphs 40 and 41 and Bresco [12] at Paragraph 44.

The court accepted based on these authorities that the Adjudicator did not have jurisdiction to award a monetary sum to WRW as responding party to the adjudication. But that was not the relevant issue, nor one that arose in those cases. The issue before the court was whether on the basis of a valid, binding valuation of the post-termination account, a court's enforcement of that valid award could include an order for payment of the sum due as a consequence, or not.

[10] Aspect Contracts v. Higgins Construction [2015] UKSC 38 [11] P C Harrington Contractors v. Multiplex Construction (UK) [2007] EWHC 2833 (TCC) [12] Bresco Electrical Services v. Michael J Lonsdale (Electrical) [2020] UKSC 25

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