Jurisdiction – payment of sum due to responding party and Set off of counterclaim at enforcement: KPR Mechanical Ltd v Kevin Watson Group Ltd and KPR Mechanical Ltd v Kevin Watson Construction Ltd [2021] NIQB 34 Humphreys J In each of two actions, the plaintiff, (“KPR”) applied for summary judgment[8] to enforce an adjudicator’s award in its favour. It had been appointed as mechanical subcontractor for two projects (i) a housing development in Northolt London by (“KWG”) and (ii) the Holiday Inn Express, Derry by (“KWC”). Each adjudication concerned the true value of KPR’s account. Contract (i) was governed by the Act and contract (ii) by the Construction Contracts 9NI) Order 1997. In respect of contract (i) KWG was the referring party. The adjudicator found that the true value of eh account was £368,242. The amount paid was £205,547 so the adjudicator found there was no sum due to be repaid by KPR to KWG. In respect of contract (ii) KWC as referring party sought a true valuation of the account. The adjudicator found the true value of the account was £795,979.08 which was £145,878.81 more than had been paid to KPR. In neither case was there an order for payment to KPR as the responding party, although the effect of the decision was that KPR was entitled to a further payment. KPR issued proceedings by way of writ of summons. In the second action, KWC issued a defence saying that KPR had no cause of action and a counterclaim exceeding the sum
Comment
The significance of this case is that the adjudication provision was imported by agreement, not imposed by the Act. Still, this made no difference to the principles to be applied. Though the previous cases referred to were not binding on the court, the judge chose to follow them. Once again we see that clear words are required to preserve a right of set off against an adjudicator’s decision and even then, they are unlikely to be upheld if they defeat the statutory purpose of preserving cash flow.
[8] Under Order 14 of the Rules of the Court of Judicature (NI) 1980
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