This case is a sequel to the enforcement of the ‘Wood decision’ referred to above. Following the enforcement of the Wood decision, ISG commenced a further adjudication before Mr Molloy seeking a determination of the gross value of FKC ’s works. On 14 April 2023, Mr Molloy issued a Decision (the ‘ Molloy decision ’ ) in which he held, so far as relevant, that the
gross valuation of FKC's Works at 28 February 2023 was £3,736,679.72. On the same day,
ISG issued the present proceedings for a declaration that FKC was entitled to no more than the
sum found due by the Molloy decision and repayment of any sums paid in excess of that sum
and, by subsequent amendment, repayment of the sum of £1,751,063.70 paid to FKC by ISG on 16 May 2023 (the ‘ Wood Overpayment’ ).
ISG relied upon the decision of the Supreme Court in Aspect Contracts (Asbestos) Ltd v
Higgins Construction Plc 13 in which Lord Mance observed:
" 23. In my view, it is a necessary legal consequence of the Scheme implied by the 1996 Act into
the parties' contractual relationship that Aspect must have a directly enforceable right to
recover any overpayment to which the adjudicator's decision can be shown to have led, once there has been a final determination of the dispute…
It seemed to the learned judge that, where the dispute referred to an adjudicator had then been
referred to the Court or arbitration, and a different, final, outcome arrived at, it must follow that
any sums paid over pursuant to the decision of the adjudicator should be repaid. The
temporarily binding effect of the (incorrect) decision must yield to the final effect of the (ex
hypothesi) correct judgment. The effect of the earlier judgment on 14 June (in these
proceedings) was to undermine the basis on which Mr Wood proceeded and to reverse the
Wood decision, which could now be seen to be wrong.
In the result, ISG was entitled to the declarations sought in respect of, and summary judgment
for the repayment of, the sum of £1,751,063.70.
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13 [2015] 1 WLR 2961
12
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