At this point, the court felt it convenient to address the question of whether there was any distinction properly to be made between the ‘ advice ’ of the adjudicator on the one hand and the ‘ decision ’ on the other. The adjudicator referred to the potential distinction in the relief claimed by Sleaford, drawing it to the attention of
the parties and inviting comment on it. She ultimately construed the request that
she "advise" the parties literally and distinctly from those matters upon which she
was called to decide, as was clear from her approach and comment that "any such
advice may not be enforceable" and later, when she contrasted her decision from
her advice. She clearly did decide that clause 21.4 contained pre-requisites to
payment. Pending trial, that element of her decision was binding. However, viewed objectively, she did not intend her ‘advice’ to be binding. In practical terms, this turned out to be a distinction without a difference because it was common ground
that she either advised or decided that she was unable to reach any conclusion
whether or not all pre-requisites to payment had, in fact, been met. However, what
was abundantly clear was that she did not consider that that inability was such as
to shut out IPS from its entitlement to payment. She clearly decided that payment
was to be made. Accordingly, the award was to be enforced and summary
judgment granted to IPS unless any final determination in the Part 8 claim impacted
upon it.
Part 8
For the reasons summarised below, the court found that the issues arising in the
Part 8 proceedings were unsuitable for summary determination.
The question of construction of clause 21.4 involved the prior question: whether it
was ever capable of being operated in the case of milestone payments where there
was no mechanism for determining what sum related to the work of sub-
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