2) Jurisdiction – contractual basis of adjudicator’s appointment: OD Developments v Oak Dry Lining Ltd [2020] EWHC 2854 (TCC) HHJ Waksman was faced with an application for a part 8 declaration by OD that it was entitled to payment of £625,000 being the notified sum in its Final Payment Notice, which it said had become conclusive pursuant to the terms of the subcontract between the parties. The defendant Oak who had been successful in an adjudication, sought enforcement of the decision in its favour for £430,000 and OD opposed that application on the basis that the adjudicator lacked jurisdiction to make the award. OD had engaged Oak to carry out dry lining works under a letter of intent (LOI) which stated that the parties intended to enter into a JCT D&B subcontract 2011 (‘the JCT terms’). The LOI provided for adjudication and that any adjudicator should be appointed by the RICS. The works were completed but no JCT terms were ever signed. There were issues over payment with both OD and Oak serving payment notices and a series of counter notices being either payless or payment notices purportedly in accordance with the JCT terms culminating in a Final Payment Notice from OD for £625,000. If the JCT terms applied OD contended that the notice would be conclusive of the sum due to it.
Having reached a settlement that required Flexidig to carry out what were agreed works, it would have been both unfair and unjust to allow M&M once those works had been completed to turn the clock back to enforce the earlier adjudication award. In these circumstances, if judgment has been entered, for the sum found by the adjudicator, the court would have stayed the judgment because fairness and justice demanded it[7]. There was cogent evidence that M&M was in a parlous financial state and unlikely to be able to afford to repay the sum of £12,679 if later required to do so; thus the order for payment into court and not to M&M.
[7] See Equitix ESC CHP (Wrexham) Limited v Bester Generacion UK Limited [2018] EWHC 177 (TCC) at paragraph [77]:
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