adjudicator's decision and then – to the extent possible – endeavour to sort out the Part 8 proceedings. The same point was made in Hutton Construction Limited v
Wilson Properties (London) Ltd [8], where the judge said that the Part 8 claim
should be dealt with after the enforcement unless the point raised was
straightforward and self-contained and the parties were agreed that it could be
dealt with at the enforcement application without adding to the time estimate.
Warnings had been given in subsequent cases, and the proper practice was
enshrined in the TCC Guide October 2022 at 9.4.4 and 9.4.5.
Although the duplication of proceedings was a matter of regret, with the part 8
claim relevant only if JBH lost the first adjudication, it was an approach that was
open to them. There was nothing in the 1996 Act to suggest otherwise. The judge
had been right not to strike out the part 8 application, which disposed of Ground 1
of the appeal. While the judge should have considered the part 8 proceedings
through the prism of AVB's successful claim in the first adjudication and the
decision of 19 January 2022 in their favour, it was much too late for that to change
anything by the time of the appeal.
The rest of the judgment was concerned with the construction of the payment
terms of the Sub-contract. The Court of Appeal allowed the appeal, finding notably
that interim payment application 14 was not late and was valid; it agreed with the
judge that the payment notice was valid; it found there was no waiver or estoppel
based on a previous late application; but made no other orders. Although AVB was
entitled to enforce the first adjudicator's decision back in April 2022, that
entitlement had long been overtaken by events, in particular by the result of the
second Final Account adjudication, which result JBH had applied to enforce.
Moreover, no part of the appeal sought the payment of any sum by JBH to AVB, so
the court had no power to award payment in any event. In the result, this all
8
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