the case where occupation was in breach of statutory planning rules). If anything, this put Mr and Mrs James in breach of contract – a civil matter which did not make occupation ‘unlawful’. Finally, RBH relied on various documents which identified Mr James' property company, Trilogy, as the client. The court accepted that the loan documents and the Trilogy documents required explanation and raised the possibility that the house was being constructed as a development for onward sale. But in the judgment of the court, this was ‘part of the picture’ and had to be set against the James' own evidence, which, if accepted, would be determinative of the s106 point. The court could not decide which evidence to accept on a summary basis. Looking at the evidence overall, Mr and Mrs James surmounted the Part 24 test. They had a real prospect of establishing that the residential occupier exception in s106 was engaged. In that event, it was common ground that the adjudicator would not have had jurisdiction. The court declined to enforce the adjudicator's decision and dismissed the application for summary judgment.
The PLN
The court determined that the PLN was valid.
Adjudicator’s fees
The court agreed with and followed the Scottish case of Castle Inns (Stirling) Ltd v Clark Contracts , [12] holding that there was no power to reverse or overrule the adjudicator’s order as to the allocation and payment of their fees for the reasons given in that case by Lord Drummond Young, which had not been departed from in previous English cases. [1] Scheme for Construction Contracts (England & Wales) Regulations 1998 (SI 1998/649). [2] Scheme for Construction Contracts (England & Wales) (Amendment) (England) Regulations 2011 (SI 2011/2333). [3] Scheme for Construction Contracts (Scotland) Amendment Regulations 2011 (SI 2011/371). [4] Scheme for Construction Contracts (Scotland) Regulations 1998 (SI 1998/687) (S.34). [5] Scheme for Construction Contracts (England and Wales) Regulations 1998 (Amendment) (Wales) Regulations 2011 (SI 2011/1715) (W.194). [6] [2022] EWHC 936 (TCC) [7] Bresco Electrical Services Ltd (in liq) v Michael J Lonsdale (Electrical) Ltd [2020] UKSC 25, (2020) 190 ConLR 1 [8] [2020] EWHC 1965 (TCC). [9] Akenhead J in Estor Ltd v Multifit (UK) Ltd [2009] EWHC 2108
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