3) Payment - Effect of Subsequent correction –
Trant argued before the Adjudicator that it had issued a payment and or payless notices and that though validly issues, PA 26 was not substantiated properly. The Adjudicator decided that the emails relied upon by Trant were not valid payment or payless notices respectively and that Trant must pay notified sum immediately, in full and without deduction, with interest and his fees. Before the court, Trant relied on effectively the same grounds to oppose enforcement as to justify an alternative application for a stay of execution if summary judgment was granted. The court noted the applicable principles were well known and been applied for some 20 years. The starting point was that if the adjudicator had decided the issues referred to him or her, whether he or she was right or wrong in fact or in law, as long as they had acted broadly in accordance with the rules of natural justice, that decision would be enforced by summary judgment[12]. For a modern statement of the principle the court referred to the dicta of Coulson J (as he then was), in Hutton [13] at [14]: “If the decision was within the Adjudicator's jurisdiction and the Adjudicator broadly acted in accordance with the rules of natural justice, such defendants must pay now and argue later.” Neither of these two bases on which a decision might be challenged were present or relied on by Trant. The court also looked at the two narrow exceptions identified in Hutton at [4] namely ‘admitted error’; and the presence of a self-contained legal point concerning timing, categorisation or description of payment notices or payless notices, in respect of which the potential paying party had issued Part 8 proceedings seeking a final determination of that or those substantive points. Again, neither exception applied here.
Manifest injustice: J&B Hopkins Ltd v Trant Engineering Ltd [11] IBy a sub-contract, Trant engaged Hopkins to carry out M&E works at a recycling plant in the Isle of Wight. There was a dispute over the payment of interim Payment Application 26 (‘PA26’) which Hopkins referred to adjudication. On 2 March 2020, the Adjudicator, Mr Silver decided Hopkins was entitled to approximately £974,000 including VAT being the sum that had been claimed by them and was found to be the notified sum, against which Trant was found not to have issued a valid payment or payless notice as required by s.110B(4) of the Act.
Trant declined to pay.
Hopkins issued proceedings in the TCC on 10 March 2020. The usual expedited directions were given. Then in April because of the Covid- 19 crisis further directions were given for a remote hearing which was conducted remotely by Skype for Business.
At paragraph 3.9 of the Notice of Adjudication Hopkins had stated:
“For the avoidance of doubt, the Adjudicator is not asked, nor does the Adjudicator have jurisdiction to, investigate or consider the merits of any actual valuations of JBH's sub- contract works as part of this adjudication. In this adjudication the Adjudicator's jurisdiction is strictly limited to considering whether the sum applied for by JBH in Application 26 became due and payable by virtue of Trant's failure to serve any valid and/or effective payment or payless notice in response to the same.”
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