2) Dispute – not crystallised – Bravejohn Company Ltd v Prosperity Moseley Street Ltd [2021] EWHC 3598 (TCC) Eyre J judgment 13 December 2021 Bravejohn Company Ltd as claimant submitted some six invoices for design and construction work it said it had carried out for the defendant Prosperity. In response the latter gave payment and pay less notices in respect of three invoices showing a sum due to Bravejohn of £36,752 which however remained unpaid. Bravejohn commenced adjudication proceedings in which Prosperity submitted that, no dispute having crystallised, the adjudicator should resign. The adjudicator found that the submission of the invoices and the non-payment of the payment notice gave rise to a dispute and that he had jurisdiction. The adjudicator agreed with Prosperity that the invoices were not valid payment applications, but that they had treated five of them as valid and issued payment notices in respect of the first three. Thus they were obliged to pay the sum in their payment notices and awarded Bravejohn the sums claimed and interest. Upon an application to enforcement the Decision, Mr Lumb, an employee of Prosperity appeared in person and submitted a witness statement arguing there was no dispute as Bravejohn had intimated a claim against a different company, namely Prosperity Wealth. He claimed there was no contract with Prosperity (the defendant company) so no dispute had crystallised before the adjudication took place. In oral argument at the hearing, Mr Lumb put forward a different concern, that Prosperity’s design was defective and needed to be resolved.
There was no inequality of bargaining power; both sides were represented when the contract was made. Most importantly of all, Clause 1 made complete commercial sense and fitted easily with other terms of the contract. It followed the advice in Harrington .
Issue 6: Should the court interfere with the Judge’s costs order?
In his second judgment[12] the judge summarily assessed the respondent's costs in the sum of £26,328. That was based on the time that Mr Davies had spent on the case[13]. The judge rejected the submission that he could have engaged a paralegal to do much of that work. He also rejected the submission that the hours claimed were excessive. Each of those conclusions were matters for the judge's assessment and the exercise of his discretion, and there was no basis on which the appellate court would or should interfere with them.
Appeal dismissed. Cross appeal (against finding of error) allowed.
[12] At [2021] EWHC 1874 (TCC) [13] Mr Davies acted in person throughout and presumably his Terms entitled him to claim for his time in recovering his fees.
Made with FlippingBook - Online catalogs