Award—character of award—recovery of sums overpaid See Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd An adjudicator’s decision concerning the valuation of an interim payment application based on the absence of a payment or pay less notice was one of interim finality. It did preclude the subsequent re-assessment of what was due either at an interim stage or on final assessment. It did not prevent a paying party from recovering any overpayment subsequently found to have been made. In the circumstances neither did it prevent a party in wrongful repudiation from recovering any overpayment made before the contract came to an end. Costs—jurisdiction—severance See Enviroflow Management Ltd v Redhill Works (Nottingham) Ltd An adjudicator did not have jurisdiction to award the unpaid party its “debt recovery costs” claimed under the Late Payment of Commercial Debts (Interest) Act 1998. The award of costs was severed and the balance of the decision was enforced. Enforcement—threat of insolvency See Bernards Sports Surfaces Ltd v Astrosoccer4u Ltd Applying principles derived from previous cases, the court gave permission to continue the proceedings and enter judgment despite the defendant filing of a “bogus” notice of intention to appoint an administrator. Jurisdiction—disputed contract terms See Rossair Ltd v Primus Build Ltd (under Stay—Company Voluntary Arrangement—moratorium) Jurisdiction—disputed right to interest—effect of second award on enforcement of first award when validity disputed See Actavo UK Ltd v Doosan Babcock Ltd Even if the adjudicator had erred in finding that that Late Payment of Commercial Debts (Interest) Act 1998 applied by reason of a previous course of dealing between the parties this was a question of fact and or law within jurisdiction. The question was not suitable to be determined on a summary judgment application as it required evidence. The validity of the second award depended on whether an extension of time had been granted so that it was given in time. Again it was a question of fact requiring evidence and could not be determined on the summary judgment application.
Payment—validity of successive payment notices and pay less notice—whether adjudication on successive payment notices amounted to the same dispute See Jonjohnson Construction Ltd v Eagle Building Services Ltd Where the contract required or permitted a payee to give a payment notice, the payee could not subsequently give a payee default notice. The referring party was entitled to refer in a subsequent (third) adjudication, the question as to what sum was due under the first payment notice, having previously been unsuccessful in an earlier (first) adjudication on a claim for payment of the sum claimed due under the second notice. It was not the same dispute as had previously been decided. The principle in Henderson v Henderson preventing successive actions for parts of the same claim, did not apply to adjudication where only one dispute at a time could be adjudicated and where the matters to be decided did not in fact amount to the same dispute. Procedure—use of CPR Part 8 in adjudication cases See Merit Holdings Ltd v Michael J Lonsdale Ltd Part 8 was only to be used where there was no substantial dispute on the facts and the issue could be decided at a short hearing and by implication, that the question to be decided could be framed with some degree of precision and/or be capable of a precise answer. Furthermore the expedited procedure under the TCC guidance for Adjudication Cases did not apply merely because the issue arose out of an adjudication. The TCC Guide, dealing with Adjudication Business, paragraph 9.4.1 and its aim of speedy resolution with an abridged timetable, did not apply to claims which were not directly related to the commencement of an adjudication, in the sense used in that paragraph. Stay—Company Voluntary Arrangement—moratorium See Rossair Ltd v Primus Build Ltd A stay would only be granted in exceptional circumstances. There was insufficient evidence before the court that the moratorium which would arise from the commencement of a CVA had been properly brought into effect. Withdrawal of referral—right to refer same dispute to adjudication—power of court to grant injunction to restrain second adjudication—whether second adjudication unreasonable or oppressive—award of wasted costs See Jacobs UK Ltd v Skanska Construction UK Ltd A party to adjudication was entitled to withdraw unilaterally a dispute referred to adjudication and commence a further adjudication in respect of the same, or substantially the same dispute. The court had power to grant an injunction to restrain pursuit of the further adjudication if it was both unreasonable and oppressive. The court found that Jacobs was entitled to its wasted and/or additional costs, if any, caused by Skanska’s failure to comply with an agreed timetable in the first adjudication.
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