Rokvic V Peacock (TCC - 13.10.2014)
ROKVIC v PEACOCK
Technology and Construction Court
Akenhead J13th October 2014
Three adjudications took place between the homeowner and the contractor. The contractor was awarded a specified sum in the first adjudication. The homeowner was awarded specified sums in the second and third adjudications. There was a net balance due to the homeowner taking into account all three awards. The contractor had made an on account payment in respect of the net balance due by repaying the sum it had been awarded. The contractor’s solicitors questioned the enforceability of the award in the second adjudication. The homeowner began proceedings to enforce the awards. The homeowner’s solicitors stated that the homeowner would discontinue the enforcement proceedings if the contractor paid the net balance and would negotiate in good faith with a view to achieving overall settlement but said nothing about the costs of the proceedings. The contractor’s solicitors stated that they had arranged for payment of the net balance and that payment was without admission of the enforceability of the second decision. The net balance was paid. The homeowner’s solicitors stated that the homeowner should be entitled to her costs of the proceedings. The contractor’s solicitors’ response was that a deal has been done in contractual terms and the contractor did not have to pay costs.
Akenhead J held that the homeowner should, as a matter of discretion, be entitled to her costs of the court enforcement proceedings she brought against the contractor despite the facts that (i) She discontinued the proceedings as a result of her offer to do so in consideration of the contractor paying the (whole of the) net sum due to her in respect of the awards in the second and third adjudications (taking into account the award to the contractor in the first adjudication) and (ii) The settlement agreement implementing these terms did not make any provision for payment of her costs.
The default rule of the claimant paying the defendant’s costs on a discontinuance did not apply as a matter of discretion because the homeowner succeeded by this settlement in recovering every penny in net terms which she was awarded in the second and third adjudications. The homeowner had to commence the enforcement proceedings because the contractor was challenging the enforceability of the adjudicator's decisions. The contractor by paying the whole net sum in effect acknowledged that the award in the second adjudication was enforceable, at least in respect of the liquidated or specified sums.