ISG Construction Ltd v Seevic College (TCC - 3.12.2014)
The employers failure to give any payment or pay less notice meant that the value of the contractors works as at the time of the payment application had to be taken as being that stated in the application
3 December, 2014
ISG CONSTRUCTION LTD v SEEVIC COLLEGE
Technology and Construction Court
3rd December 2014
The contract was the JCT Design and Build Contract 2011. There were two adjudications conducted by the same adjudicator. The contractor in the first adjudication claimed the sum it applied for in interim payment application 13. The adjudicator awarded the sum claimed on the basis that the employer failed to serve a payment or pay less notice. The employer in the second adjudication sought a decision that the sum claimed in payment application 13 was overvalued. The adjudicator accepted the contractor’s valuation of its measured works but did not accept the sum claimed for loss and expense and directed that the contractor should repay the difference on the assumption that the employer had already paid the sum awarded in the first adjudication. The employer refused to pay the full amount of the sum awarded in the first adjudication and instead paid the sum which the adjudicator held in the second adjudication was the contractor’s true entitlement.
Edwards-Stuart J held that the contractor was entitled to enforce the decision in the first adjudication and a declaration that the adjudicator in the second adjudication had no jurisdiction to decide the matters referred by reason of them being the same or substantially the same as the question decided in the first adjudication.
The employer accepted that it had no defence to the application for summary judgment in respect of the decision in the first adjudication subject to the decision in the second adjudication. The contract particulars stated that any disputes were to be resolved finally by litigation and not by arbitration with the result that there was no jurisdictional impediment to the court making a final decision and giving a declaration on the rights of the parties in relation to the dispute that was the subject of the second adjudication. The value of the contractor’s works as at the time of payment application 13 was decided in the first adjudication because that value had to be taken as being that stated in the application in the absence of any payment or pay less notice given by the employer under the payment provisions of the JCT Design and Build Contract 2011. The only issue referred to the adjudicator in the second adjudication was the value of the works at the date of payment application 13 and that issue was decided in the first adjudication with the result that the contractor was entitled to a declaration to that effect.