The only way that clause could be read to make commercial sense was that the settlement agreement as a whole was an agreement for the termination of the Contract, not in substitution of it. To achieve this, the Judge went on to imply into the entire agreement clause the words ‘termination of the’ before ‘JCT contract and project’, to make clear that the settlement agreement related to the termination of the JCT contract and project.
Comment
The effect of the agreement clause is of some interest. The judgment doesn’t record whether the implication of the additional words into the clause was something urged by the counsel for the claimant or argued in submissions. One might wonder whether the outcome have been the same but for the limiting effect of the implication. The use of these agreement clauses can’t be taken as a sufficient means of excluding certain provisions from original or underlying contracts. To the extent the law permits, and assuming that a settlement agreement is not of itself a construction contract, parties should consider whether they wish to exclude provisions from the original contract like adjudication or other ADR clauses, or to provide for their inclusion. Jurisdiction – power to award payment to a responding party VMA Services Ltd v Project One London Ltd [2025] EWHC 1815 (TCC) Adrian Williamson KC (judgment 18 July 2025) The Claimant (VMA) sought summary judgment to enforce the decision made in its favour in an adjudication. The adjudicator had decided that he could not entertain a true value adjudication (TVA) brought by the defendant (POL) because POL had not paid a notified sum and that VMA should be awarded that sum (‘the Notified Sum’). The question for the court was whether the adjudicator had jurisdiction to make this award in favour of VMA, as the respondent to the adjudication. The claims arose out of a sub-contract order given by POL to VMA for mechanical and electrical works at a premises in London. The sub-contract incorporated the JCT Design and Build Sub-Contract Agreement and Conditions 2016 containing what the Judge described as the ‘usual payment provisions’ complying with the Act and the Scheme. VMA made an application for payment for a net sum of £106,434.88 (AFP8). POL did not pay the sum and gave no payment or pay less notice. Instead, POL started the TVA. By way of defence, VMA relied on settled law as preventing POL from starting or maintaining a TVA unless and until it had paid the Notified Sum. They said the adjudicator had jurisdiction to order POL to make payment of the Notified Sum. The
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