and repeatedly on these matters. The Lord President noted the adjudicator took on “a nigh impossible task” having to consider an enormous volume of written materials in such a short time such that the decision was bound to involve “broad justice at high speed” . This was no frolic of the adjudicator’s own and the natural justice challenge failed.
Payment application – Validity – ‘days’ not ‘clear days’ Elements Europe Ltd v FK Buildings Ltd [2023] EWHC 726 (TCC) Mr Justice Constable
judgment 30 March 2023
This was another case where the successful party in adjudication (Elements) sought to enforce the adjudicator’s award in its favour and the losing party (FK) brought Part 8 proceedings to decide a short point of construction which, if upheld, would
mean the award was wrongly made. The point at issue was the construction of a
payment provision in a JCT standard form (not previously the subject of judicial
consideration). Although the parties settled their dispute after a full hearing,
judgment was given by agreement as it dealt with a point of some importance
concerning the date and time of the making of payment applications. On this point,
the court held that the requirement in clause 4.6.3.1 to make a payment application “ so as to be received not later than 4 days prior to the Interim Valuation Date for the relevant payment …" did not mean 4 ‘clear days’ before that date, but 4 days before the date, meaning it could be done on the fourth day before that date. The
payment application in question was sent in the evening outside site working hours
but received by at least one recipient on the evening of the fourth day and had
therefore been validly made. The law did not deal in parts of a day.
It is also noteworthy that Elements argued that Coulson J in Hutton Construction
Limited v Wilson had set a higher test than that in the TCC Guide i.e. that the adjudicator’s decision must be ‘obviously wrong’ or one to be taken ‘on any view’
Made with FlippingBook - PDF hosting