(4) In cases involving significant amounts of data, an adjudicator was entitled to proceed by
way of spot checks and/or sampling. How this should be carried out was a matter of substantive
determination by the adjudicator and an error in approach, in the absence of some particular
and material related transgression of natural justice, would not give rise to a valid challenge.
The decision was enforced.
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
Background
When the instant proceedings came before the court, there had been 7 adjudications between
the parties arising from disputes under two projects (known as ‘Project Barberry’ and ‘Project Triathlon’, respectively) in which ISG had engaged FKC on similar bespoke sub -contracts. On Project Barberry there was the ‘Wood decision’, of February 2023, in which ISG was
found liable to pay FKC just under £1.7m (ISG having failed to serve a valid pay less notice
in response to FKC’s payment application). That was followed by the ‘Molloy decision’, of
April 2023, in which the adjudicator found that the gross value of the sub-contract works was
£3.7m (of which it was noted ISG had already paid around £2.8m leaving a balance of some
£900,000 ostensible due to FKC).
On Project Triathlon, there were three decisions dealing with various claims (the ‘Triathlon decisions’), the net effect of which was that FKC owed ISG some £67,000.
These proceedings were brought to enforce the Wood decision. Crucially no proceedings had
been commenced to enforce any of the other decisions.
ISG did not challenge the validity of the Wood decision but they argued that the court should
use its discretion to set off the sums due under the Wood decision against the net sum due to
ISG under the Triathlon decisions, and/or against the gross value of the works determined in
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