All those same reasons applied here; the administration process would not be frustrated; the proceedings were effectively at an end; there was no risk of unfair or unreasonable preference. Therefore the court granted permission to continue the proceedings in this case. The Court was at pains to point out that in this case the conduct of Astrosoccer was far more serious than the conduct of South Coast. Astrosoccer had sought to avoid paying the debt by a number of devices including the giving of an “entirely bogus” purported notice of intention to appoint an administrator. The court identified and enumerated eight separate particular points of conduct designed to avoid payment or thwart the enforcement process. Singularly, it also criticised Astrosoccer’s solicitors for their “connivance” in that conduct amounting to an “intention to misuse the insolvency proceedings”. There was no real justification for the threat to invoke the insolvency jurisdiction in order to avoid compliance with the adjudicator’s decision. Accordingly judgment was entered for Bernards. 7. Jurisdiction—disputed contract terms See Rossair Ltd v Primus Build Ltd under Stay— Company Voluntary Arrangement—moratorium (below) 8. 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 22 The Claimant carried out scaffolding and painting works for the Defendant contractor. A dispute over payment of an interim payment application was referred to adjudication. The adjudicator awarded the Claimant £630,000 and held that the interest provisions of the Late Payment of Commercial Debts (Interest) Act 1998 (LPA) applied (the first award). A dispute arose over the final account and the Defendant commenced adjudication proceedings to determine its value. The same adjudicator awarded the Claimant £60,000 on the final account (the second award). Before the hearing of the Claimant’s application to enforce the first award, the Defendant amended its defence asserting a) the adjudicator had erred in making an award of interest under the LPA; and b) seeking to reduce the amount due to the Claimant to £60,000 in line with the second award. On interest the Defendant argued further that the point was short and self contained and could be determined without evidence at the hearing of the summary judgment application. The Court held that even if the adjudicator was
wrong in awarding interest under the LPA that was a matter of fact and or law as it went to the proper construction of the contract, the application of the LPA, and, on the facts, whether there was a previous course of dealing between the parties giving rise to an agreement to apply the LPA. Thus it clearly fell within the adjudicator’s jurisdiction. It was a case of pay now argue later and it was not appropriate for the court to determine that issue by way of Part 8 claim at the hearing of the summary judgment application as it required evidence about the previous course of dealing and could not be settled simply on the documents before the court. The effect of the second award depended on whether it was in time as the Defendant contended or out of time as the Claimant maintained. There was confusion over an extension of time for the second award in the absence of which the award was invalid. Evidence would be required to determine that issue and a further date had to be fixed for that. Judgement was entered for the full amount under the first award, with the undisputed part payable within a week and the disputed balance to be paid after the hearing of the Defendant’s Part 8 claim. 9. 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 23 Eagle employed Jonjohnson (JJC) to provide steelwork for the foundations of the Westonbirt Arboretum Treetops Walkways under a contract that did not contain either payment or adjudication provisions complying with the Act. These matters were therefore governed by the Scheme. The works were completed and in March 2016, JJC applied for the sums it claimed were then due. Eagle responded by email in these terms: “Don’t agree with your application. Phase 2 had to be redone due to your steel not to drawing. Our costs for breaking out and re-concrete phase 2 was in excess of £20k. Take the £20k from the £38k for phase 1 leaves £18,843…” In April 2016, JJC submitted a further payment notice evidently intended to act as default notice under section 110B(2) of the Act (the April notice). No payment was made and JJC referred the matter to adjudication before Ms Janey Milligan (Adjudication no. 1). JJC sought to limit the scope of the dispute and therefore the adjudicator’s jurisdiction to the sole question: whether Eagle was obliged to pay the sums set out in the April notice. That position was accepted by Eagle and the adjudicator.
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