McLean brought a summary judgment application in respect of an adjudicator's decision for £1,333,214.18 plus interest and costs. The decision was on the basis that the non-completion certificates in relation to clause 24.1 of the building contract were invalid. As a result liquidated damages could not be deducted by Albany.
Albany argued that the adjudication proceedings had been brought under a contract that was not the contract between the parties. Further, there had been a previous adjudication which had already decided the issue and that there was a breach of natural justice in that the adjudicator had not properly considered whether the point had already been decided. Finally, that Albany had a set-off or counterclaim for liquidated damages in any event.
Judge Gilliand held that the adjudication had been brought in relation to enforceable provisions of the JCT contract. Albany had argued that a supplemental agreement was in fact the contract between the parties, and that the supplemental agreement extinguished the JCT contract. This was not the case, the supplemental agreement merely amended some of the obligations between the parties that was set out in the JCT contract.
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10 November 2005, TCC, HHJ Gilliand Q
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The JCT contract contained the enforceable adjudication provisions. The previous adjudication, although relating to liquidated damages, was in respect of the validity of notices, and the second adjudicator did not trespass into the matters covered by the first adjudication. There had not been a breach of natural justice when the adjudicator considered the point and came to the conclusion that he had jurisdiction.
Finally, raising the set-off or counterclaim could not render an adjudicator's decision ineffective.