1. Introduction The law is stated at February 2018 and covers cases about the use of Part 8 proceedings, costs, jurisdiction, natural justice, payment and payment/pay less notices. 2. Award-enforceability-use of Part 8 proceedings-error of law Seadown Developments Ltd v SMCC Construction Ltd 6 The Claimant engaged the Defendant under an amended JCT 2011 Intermediate Form of Building Contract with Contractor’s Design to build a block of flats. A dispute over the final account went to adjudication, in which the adjudicator awarded the Defendant £277,374 payable within 7 days. In reaching his decision the adjudicator had held that clause 2.24.5 of the contract applied only to the Contractor’s Design Portion and not the whole of the works. The Claimant brought Part 8 proceedings for a declaration firstly that the finding was in error and secondly the decision should not be enforced. The Defendant sought judgment on the award. Held by Jefford J: 1. As long as the decision was within the adjudicator’s jurisdiction and not made in breach of natural justice it would be enforced. 2. The increasing use of Part 8 proceedings was recognised in the TCC guide 9.34 and could be used to determine fundamental points of principle in the circumstances set out in Hutton . 7 3. This case was nowhere near those circumstances. Even if the adjudicator had been wrong in his interpretation of clause 2.24.5 of the contract, the claim did not turn on that finding; in fact the vast majority of the claim had nothing to do with it. Summary judgment granted to the Defendant. Comment Jefford J adopted examples from Hutton and reaffirmed the principle that in order for a Defendant to be able to resist summary judgment on the basis of its Part 8 claim, it must be able to show that the point at issue was short and self- contained; required no oral evidence or other elaboration; and was on which on a summary judgment application it would be unconscionable for the court to ignore. Although the first declaration regarding the interpretation of the contract was suitable for Part 8 proceedings, it was not appropriate for the court to declare that the whole of the adjudicator’s decision was unenforceable. Even if the court were to find on a Part 8 that an adjudicator had made an error in their decision, that declaration would not mean that the adjudicator’s decision was unenforceable where the decision rested on additional issues and findings.
3. Costs-jurisdiction See PFG Design Ltd v Masma Ltd PFG Design Ltd v Masma Ltd (below) This case is reported more fully under Jurisdiction. Despite the decision in Enviroflow 8 the Court declined to determine whether the adjudicator had been entitled to award a fixed sum of £100 under section 5A of the Late Payment of Commercial Debts (Interest) Act 1998 (“LPA”). The point was not fully argued and the amount was small. 4. Jurisdiction-adjudicator entitled to decide date and terms of oral contract See PFG Design Ltd v Masma Ltd 9 A number of issues arose for decision and were pursued as jurisdictional matters whereas in reality a number of them were challenges to the adjudicator’s findings. The facts were simple enough. PFG provided design services to Masma based on an oral contract, the date and terms of which were in dispute. As part of its remuneration it claimed a ‘success fee’ and submitted an invoice for £48,500. The first issue for the adjudicator was whether there was a contract and whether it was entered into before or after October 2011. If before that date, the adjudicator had no jurisdiction to determine the dispute based on a contract that was not in writing. The adjudicator concluded there was a contract made in January 2012: there was ample material for that conclusion. Once he had so decided, jurisdiction was founded and he was entitled to go on to decide upon the particular terms of the contract and to determine the dispute.There was plainly a contract that post dated October 2011 and that was an end of Masma’s jurisdictional argument. The adjudicator decided as a matter of fact, contrary to Masma’s case, that the claimed success fee was not dependent upon the sale of the site to which the services related. He further concluded that the amount of the success fee was agreed at a meeting in October 2016 in the sum of £20,000. The Court held that the fact that PFG had invoiced a greater sum did not prevent him from making that finding. Masma argued there was more than one dispute. The Court disagreed finding it was clear there was single dispute regarding the success fee. Masma also argued that the adjudicator’s finding that the success fee was £20,000, when Masma’s invoice was for more than twice that amount, and neither party had contended that the success fee was £20,000, was a breach of natural justice. The Court held that where the parties contended for different figures the adjudicator was entitled to decide the amount and there was written material on which he could base his conclusion. He did not engage on ‘a frolic of his own’ where a point had been argued, including where one party argued a point and the other did not come back
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