1) Jurisdiction – same dispute – binding nature of earlier true value award – set –off – joinder of disputes – stay – Bexheat Ltd v Essex Services Group Ltd – EWHC 936 (TCC) O’Farrell J. (judgment 19 April 2022)
before Mr Linnett.
ESG raised and the court had to decide each of the following issues.
i ) whether the 'true value' of Interim Application 23 was determined in the First Adjudication, with the result that Mr Silver had no jurisdiction to determine the payment due under Interim Application 23 in the Second Adjudication Decision and/or ESG satisfied its payment obligations in respect of the same; i i) whether ESG had an entitlement under clause 30.2 of the Contract to set off or make deductions against the Second Adjudication award in respect of any amounts which may at any time be due or have become due from BHL to Essex; iii) whether ESG was entitled under clause 30.3 of the Contract to elect to have the 'true value' of the application payment in dispute determined at the same time by the same adjudicator as the 'notified sum' dispute; iv) whether Mr Silver had jurisdiction to award to BHL £100 compensation pursuant to the 1998 Act; if not, whether that part of the award should be severed; v) whether enforcement of any judgment should be stayed, having regard to any risk that any subsequent judgment requiring return of the sum paid would go unsatisfied, or to avoid any manifest injustice.
Background and contentions
These interesting enforcement proceedings raised a number of different issues and a would-be novel point. The dispute arose out of a project for the construction of a residential and extra care facility. ESG was engaged as sub-contractor for the MEP works and in turn engaged BHL as sub-sub- contractor to carry out the plumbing works ("the Contract"). The claimant ("BHL") applied for summary judgment to enforce the adjudication decision of Mr Silver dated 12 November 2021 ("the Second Adjudication"), directing the defendant ("ESG") to pay to BHL £706,029.62 plus interest and the adjudicator's fees. The Second Adjudication resulted from a payment application number 23 against which BHL contended and the adjudicator found there was no valid pay less notice. In the first adjudication between the parties BHL had applied for a true valuation of payment application number 22 and the adjudicator, Mr J Cope, decided that the true value of Interim Application 22 was £1,319,830.61 and BHL was entitled to payment of £141,646.35 plus VAT plus interest and fees ("the First Adjudication"). ESG paid all those sums in full.
The decision
Issue 1: Jurisdiction – same dispute?
The starting point was for the court to consider the scope of the First Adjudication; in particular, whether the dispute or difference the subject of the First Adjudication was the same or substantially the same as the dispute or difference in the Second
There was then a third abortive adjudication
Made with FlippingBook Ebook Creator