The adjudicator found that clause 21.4 of the subcontract did require production of
certified copies of the sub-subcontracts entered into by IPS, with evidence of the sub- subcontractors’ insurances as pre-conditions of payment, within a stipulated time of 7 days. She ‘confirmed’ t hat IPS had installed a compliant installation that was in accordance with the subcontract and that milestones 1-17 should be certified as accepted . She ‘advised’ (as per the relief claimed) that (i) there was no proof that IPS had been negligent in supplying incorrect and unsuitable fittings and (ii)
she was unable to determine whether or not there had been compliance with all
pre-requisites. She valued the works in the sum of £838,400 and found that Sleaford
should make payment to IPS in the sum of £323,502 and directed payment to be
made accordingly.
Sleaford declined to pay and issued Part 8 proceedings in London for declarations
as to the meaning of clause 21.4 and that, in consequence, no further payment was
due, and the award should not be enforced. IPS issued Part 7 proceedings to enforce
the award in Manchester.
IPS’s position was that the adjudicator's decision in its favour should be enforced pursuant to its Part 7 claim unless Sleaford succeeded at the concurrent hearing on
the substance of its Part 8 declarations. As to that, it said Sleaford could not succeed
at the concurrent hearing as its claims were unsuitable for summary determination
by Part 8 because the complaints of non-compliance with clause 21.4 had not been
properly particularised, and its defence to any breach depended on the resolution
of factual issues, including waiver. Sleaford accepted that the decision was valid
and unless it succeeded on its Part 8 claim, it was enforceable. It said its Part 8 claim
involved a short point of construction, and there was no need for evidence as it was ‘ incontrovertible that the sub-subcontracts had not been provided to it within 7 days and no evidence of insurance provided. Payment of (3) previous milestones could
not amount to waiver. It also pointed out that the fact that the milestones were for
Made with FlippingBook - PDF hosting