Adjudication.
payment of the First Adjudication Award), Mr Silver did not carry out an examination of the claims, evidence and argument in respect of the true valuation of Interim Application 23. The relief granted by the Second Adjudication Award did not refer to the true valuation of Interim Application 23; it simply decided that BHL was entitled to payment in full by reason of ESG's failure to serve a valid Pay Less Notice. Thus, on analysis, the dispute or difference that was decided by Mr Cope in the First Adjudication was not the same or substantially the same as the dispute or difference decided by Mr Silver in the Second Adjudication.
Looking at the adjudication notice, the First Adjudication concerned the true value of Interim Application 22. In contrast, the dispute referred in the Second Adjudication was whether ESG had served a valid Pay Less Notice in response to Interim Application 23; if not, whether BHL was entitled to payment of the sum claimed as 'the notified sum'. Whilst the figures in each application were substantially the same, they covered different periods and the focus in the Second Adjudication was whether there was a valid Pay Less Notice as opposed to the true value of the application.
Next the court looked at what was actually decided.
That however was not the end of the matter.
The dispute determined by Mr Cope in the First Adjudication was the true value of Interim Application 22. In his decision, he expressly stated as much. He worked through the detailed argument, evidence and figures in respect of the measured works, preliminaries, variations and claims for additional costs but all with the intention of establishing the true value of Interim Application 22. The relief granted by the First Adjudication Award contained a declaration as to the true valuation of Interim Application 22. In contrast, the dispute determined by Mr Silver in the Second Adjudication concerned the validity of what was relied by ESG as the Pay Less Notice in response to Interim Application 23; the key issue was the status of that document sent by ESG on 13 October 2021, one day after publication of the First Adjudication Decision. Although the application in Interim Application 23 for the measured works, preliminaries and variations were identical to the figures in Interim Application 22, (save for certain credits for ESG's
ESG contended that the true value having been determined in the First Adjudication ESG was entitled to rely upon and enforce that true value against Interim Application 23 despite the absence of any payment or Pay Less Notice and that nothing in S&T v Grove prevented that reliance, where, as here, the true value was decided prior to not after the notified sum falling due as a result of failure to serve a Pay Less Notice. The judge said that despite its superficial attraction the argument failed as the true value related to a different application and valuation period. Although it was argued that the true value of Interim Application 23 would not change, that question had not been adjudicated upon. Second regardless of the true value, the defence had not been raised in the Second Adjudication and it was too late to raise it now. It had failed to reserve its position in the Second Adjudication although it done o sin relation to another matter (the non-payment of the adjudicator’s fees in the First Adjudication).
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