5) Stay of execution - error of fact or law: QMAC Construction Limited v Northern Ireland Housing Executive [2020] NIQB 25 The plaintiff QMAC entered into a series of contracts with the defendant pursuant to a framework agreement for improvements to its older housing stock. In respect of two such contracts called the Springfield Contract and the Ardoyne Contract, the plaintiff made applications for interim payment for work done, and contractual interest at an extremely high rate, both of which were disputed and not paid. In neither case did the defendant serve a Pay Less Notice and the sums claimed on the applications became in each the notified sum. The plaintiff commenced adjudication proceedings under both contracts for the notified sums and interest at the rate of 0.5% per week of delay. On the Springfield Contract the adjudicator awarded the plaintiff the sum of £143,454.71 plus VAT together with £121,501.95 interest as claimed and the Adjudicator’s fees of £4,176.90 plus VAT. On the Ardoyne contract the same adjudicator awarded the plaintiff the sum of £65,995.94 plus VAT together with £54,116.67 interest as claimed and the Adjudicator’s fees in the sum of £3,685.50 plus VAT. Each contract provided for interest to be paid at the rate of 0.16% per week (not 0.5% per week) for delayed payment. The plaintiff’s application for summary judgment to enforce the adjudicator’s two awards. defendant resisted the
adjudication was not a final determination of rights decisions were to be enforced even if they resulted from error of procedure, fact or law decisions were only not to be enforced if they involved an excess of jurisdiction or serious breach of the rules of natural justice mistakes by an adjudicator were to be viewed with a degree of scepticism consistent with the purposes of the Act. The defendant concentrated its fire on alleging that the interest award was manifestly incorrect and argued that if the judgment sums were paid over, then it would be difficult for the plaintiff to repay the defendant should the defendant ultimately succeed in the forthcoming true value adjudications. The court applied the well-known principles summarised by Jackson J (as he then was) in Carillion Construction v Devonport Royal Dock Yard Limited [12] that is: In the adjudication and before the court, the defendant denied any liability to pay the sums under either Contract. It pointed out it was “finalising two ‘true value’ adjudications” which would determine that the defendant was owed money by the plaintiff. The defendant further described the plaintiff’s adjudications as ‘smash and grab’ and complained that the adjudicator had made an obvious error in his calculation of interest and/or that the award of interest at such a high rate constituted a penalty. It was however significant that in neither case did the defendant dispute jurisdiction or argue that there was a breach of the rules of natural justice. More importantly, the defendant had not served a Pay Less Notice in respect of either contract.
[12] [2005] PLR 310, at paragraph [80]
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