Complexity and/or volume of material and consequent constraint of time in which to respond
were inherent in the process and of themselves no bar to enforcement. Cases involving
significant amounts of data entitled the adjudicator to proceed by way of spot checks and/or
sampling in such manner as s/he should determinate.
Set off against adjudicator ’ s decision
FK Construction Limited v ISG Retail Ltd [2023] EWHC 1042 (TCC) Justice Joanna Smith
DBE judgment 5 May 2023
A court would have discretion to permit the set off of one adjudicator’s decision against another, as an exception to the pay now argue later principle where:
a) There was a statutory right of set off which did not offend the Act.
b) The set off was a consequence of the decision itself.
c) In its discretion where there were two (or more) valid and enforceable decisions between the
same parties, and proceedings to enforce each decision, the effect of which was that money was
due to each party.
In this case the principles were not satisfied and the decision was enforced in full without set off.
Repayment following final determination
ISG Retail Limited v FK Construction Limited [2023] EWHC 2012 (TCC) Adrian Williamson
KC judgment 2 August 2023
Following the case of Aspect and Higgins. This is the sequel to the earlier case in which repayment was
now ordered.
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