• Step 3, if both decisions were valid and enforceable, the court should enforce or give
effect to them both, provided that separate proceedings had been brought by each
party to enforce each decision.
• Step 4, the court should decide how each decision should be enforced. It might, for
example, be inappropriate to set off a second decision against the first, if the first
decision was made on the basis that there could be no set off.
The decision
The court found the facts of HS Works to be far removed from the present case. The court
had not been asked to determine the validity or enforceability of either the Molloy decision
or the Triathlon decisions and there were no separate proceedings to enforce those decisions.
The result was that the court had no discretion to permit set off in respect of any of those
decisions. Even if the court was wrong in that conclusion, there were other reasons why it
would not have exercised its discretion in favour of allowing a set off. These included the
fact that the Wood decision did not indicate that there could be set off or withholding against
the sum found due to FKC. And no actual payment had been found due under the Molloy
decision which was concerned with the gross value of the work. On the wider question of
whether an adjudicator’s decision relating to one project could be set off against a decision relating to another project, the court commented that this was ‘a point of some interest’,
which it was unnecessary to determine in the present case.
Accordingly, FKC was entitled to summary judgment for the full sum due under the Wood
decision.
Repayment following final determination
ISG Retail Limited v FK Construction Limited [2023] EWHC 2012 (TCC) Adrian
Williamson KC judgment 2 August 2023
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