Citation: [2023] EWCA Civ 54
James Frampton (instructed by Matthew Leonard at Hawkswell Kilvington) acted for the Respondent, J&B Hopkins, in this appeal to the Court of Appeal which raised important issues as to when and how a Part 8 claim can be used as a defence to an unfavourable adjudicator’s decision which has not been complied with.
James was successful in dismissing the appeal on Ground 1, with the Court agreeing that the Part 8 claim was not an abuse of process because of the failure to comply with the adjudicator’s decision.
The appeal was, however, successful on Ground 3, with the Court deciding that, based on the bespoke payment provisions of the subcontract, the payment application was valid.
On the unusual circumstances of the case, including that the appeal was largely academic given that by the time the appeal was heard J&B Hopkins had been successful in a further adjudicator’s decision commenced by A&V on the final account and that the Appellant’s argument on Ground 3 was not run at first instance, James was also successful in securing no order as to costs of the entire proceedings (including the appeal) for his client.
Comment
This case provides helpful guidance for parties and practitioners on how the Court should approach and handle a Part 8 claim issued to overturn an element of an adjudicator’s decision. All practitioners considering enforcing or resisting a decision are advised to review the Lord Justice Coulson’s summary of the proper procedure.
The Judgment also provides confirmation that a subsequent final account adjudication should supersede any unpaid sums due under an earlier interim (true value) adjudication.
Finally, there are some (obiter) remarks on when a party may be estopped from challenging the validity of a payment application which are likely to be of interest and application in smash-and-grab adjudications.
James Frampton acted for the Respondent. A copy of the judgment is available here.
