Valuation evidence would be required because, at present, there was no basis upon
which the court could determine what part of any milestone payment related to the
work of a given sub-subcontractor in respect of which a breach of clause 21.4 had been proven. This was also fatal to Sleaford’s contention that IPS was not entitle d to summary judgment because it could not show what monies were due under clause
21.4 of the subcontract. IPS was seeking judgment on the sum awarded by the
adjudicator not due under clause 21.4. The burden of showing for the purposes of a
final determination what, if any, sums belonged to sub-subcontractors did not fall
on IPS but on Sleaford and required evidence.
The issues were by no means short and self-contained and were not suitable for
final determination under Part 8 at this stage. There would be summary judgment
for IPS.
There was an issue about the ambit of s 110(1A) (on which there was little authority)
and the exception at (1C) (on which there was no authority). IPS said that if the terms
of clause 21.4 amounted to conditions precedent to payment, the terms were
inoperable and / or did not comply with the Act, and the default provisions of the
Scheme would apply. The court said that questions were for another day and not
for the Part 8 proceedings.
The Part 8 proceedings were dismissed so as to enable Sleaford to start fresh
proceedings based on the issues it now might choose to pursue.
Comment: Whilst the case decides nothing new, it is yet another example of an
unsuccessful attempt to pre-empt enforcement of a valid award by asking for the
final determination of a central underlying legal issue (in this case, the construction
of a payment provision). That the attempt failed for a plethora of reasons is a
reminder that the use of Part 8 is subject to restrictions and is only suitable for short,
self-contained points requiring no evidence, as previous case law and the TCC
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