Hillview engaged Botes to carry out certain works under a contract that contained adjudication provisions compliant with the requirements of the Construction Act. A dispute arose in relation to Hillview’s entitlement to liquidated and ascertained damages as a consequence of delays in completion of certain sections of the works. Hillview obtained an adjudicator’s award in its favour for £292,650.
Botes brought separate proceedings to recover £190,780.46 plus VAT and interest it claimed was due under the final account, it also applied for summary judgment. The Botes’ application was due to be heard later in the month. Botes accepted it had no defence to the claim made by Hillview. However, Botes relied upon its own application for summary judgment in relation the final account to submit that there was a compelling reason that the Hillview application should be adjourned and both applications (Hillview and Botes) be heard together.
Botes said it was entitled to set off the balance due to it against the sum awarded under the adjudication proceedings. Alternatively, if summary judgment was entered for Hillview, execution of that judgment should be stayed until Botes’ own application for summary judgment had been determined.
The judge during the course of the hearing asked specifically if there was any case being advanced there was a risk if the adjudicator’s award was paid in full and immediately, Hillview would not pay the sums due to Botes under the final account claim, if those sums became due and payable. No such argument was advanced.
Was Hillview entitled to obtain summary judgement?
Judge Toulmin decided that Hillview was entitled to summary judgment. Botes had conceded that it had no defence. There was no justification to adjourn a summary judgement hearing. Adjudication under the Construction Act was intended to resolve construction disputes, albeit on a provisional basis, by way of prompt payment.
*Full case details
Hillview Industrial Developments (UK) Ltd vs Botes Building Ltd   EWHC 1365 Toulmin QC
Contact Fenwick Elliott on 020 7421 1986 or NGould@fenwickelliott.co.uk
The important message from the courts is that decisions of adjudicators will be enforced even if the position may turn out to be different once the final account has been adjudicated. A further valid decision of an adjudicator is required to trump a decision relating to interim matters.