Cases - Caledonian Modular Ltd v Mar City Developments Ltd
Record details
- Name
- Caledonian Modular Ltd v Mar City Developments Ltd
- Date
- [2015]
- Citation
- EWHC 1855
- Legislation
- Keywords
- Adjudication - contract administration - Housing Grants, Construction and Regeneration Act 1996
- Summary
-
The contractor claimed payment of the full amount claimed under an 'interim application' on the basis that the defendant had not issued a pay less notice in time.
The court decided that the 'application' was not in fact a valid application at all. It had been issued at the wrong time, suggested that it might be a draft only, and did not include the required information. No payment had therefore become due and no pay less notice needed to be issued. The court warned that if contractors wanted to take advantage of the draconian effect of the provisions of s.111 of the Act, they had to make sure that their applications conformed with all of the contractual requirements as to timing and content.
'It may be asked: why is the judge dealing on enforcement with an issue which has already been decided by the adjudicator? Surely, in accordance with Bouygues (UK) Ltd v Dahl-Jensen (UK) Ltd [2000] BLR 522, and the myriad cases thereafter, it is not open to a defendant to seek to avoid payment of a sum found due by an adjudicator, by raising the very issue on which the adjudicator ruled against the defendant in the adjudication?
'That is, of course, the general rule and it will apply in 99 cases out of 100. But there is an exception. If the issue is a short and self-contained point, which requires no oral evidence or any other elaboration than that which is capable of being provided during a relatively short interlocutory hearing, then the defendant may be entitled to have the point decided by way of a claim for a declaration. That is what happened, for example, in Geoffrey Osborne v Atkins Rail Ltd [2010] BLR 363. It is envisaged at paragraph 9.4.3 of the TCC Guide that separate Part 8 proceedings will not always be required in order for such an issue to be decided at the enforcement hearing.
'It needs to be emphasised that this procedure will rarely be used, because it is very uncommon for the point at issue to be capable of being so confined.'