The case of William Verry Ltd vs The Mayor and Burgesses of The London Borough of Camden concerned the enforcement of an adjudicator’s decision, but raises the issue of the status of an adjudicator’s decision as a result of the operation of the final certificate provisions in the contract and a claim for defects that had not been considered by the adjudicator. In essence, could Camden defeat the adjudicator’s decision because of a subsequent valuation and a claim for defects.

The building contract was for the refurbishment of a Victorian housing scheme in Holborn. The contract was in the form of a JCT Intermediate Form of Contract 1998 Edition incorporating Amendment 1 and TC/94/IFC. At practical completion, Verry had been granted an extension of time of 27 weeks and five days. There had been two adjudications.

The first concerned an application for payment in June 2003 and the second, this time brought by Camden, concerned specific items of valuation. These enforcement proceedings concerned the third adjudicator’s decision. That decision confirmed the extension of time, calculated the amount due at practical completion, the amount of retention, the amount of liquidated damages and then, identified a net payment, to Verry, together with interest.

Verry commenced a fourth adjudication in respect of the final certificate and Camden a fifth adjudication in respect of defects. The fourth adjudication had been stayed by consent, and at the time of the judgment, decision number five had not yet been issued.

Camden resisted the summary judgment application on three grounds:

  • The final certificate showed an amount due of £46,020.11 which was extinguished by Camden’s liquidated damages claim
  • The decision in the fifth adjudication in respect of defects was imminent;
  • Camden was concerned about Verry’s financial ability to pay any amounts that may become due in Adjudication No. 4, should a repayment be ordered.
The first two questions concerned the status of an adjudicator’s decision. In other words, could an adjudicator’s decision be somehow defeated by the contract between the parties or a counterclaim for defects that had not been considered by the adjudicator.