Kersfield Developments (Bridge Road) Ltd v Bray and Slaughter Ltd

Citation: [2017] EWHC 15 (TCC), 170 Con LR 40

This was an application for a final determination of a dispute that had already been determined by an adjudicator. A dispute arose between the parties in relation to a contract to refurbish a mansion house and build a series of detached houses. The contract was made under an amended JCT Design and Build contract, 2011 edition. Bray issued an application for interim payment of £1.2m with Kerfield failing to issue a pay less notice or to pay the £1.2m. Bray then commenced an adjudication and the adjudicator awarded Bray £1.2m. Kersfield argued that the adjudicator’s decision was wrong and that it was entitled to commence another adjudication to determine Bray’s true entitlement under the contract.

O’Farrell J held that the interim application was a valid application under the contract. The application was accompanied by spreadsheets which clearly set out how much was being claimed and would have allowed Kersfield to dispute the amount. Furthermore, Kersfield had not submitted a valid payment or pay less notice and were therefore obliged to pay the sum stated in Bray’s application.

O’Farrell J also considered that Kersfield was not entitled to commence another adjudication in order to determine the proper value of the works. In the absence of a pay less notice from Kersfield, there was no relevant dispute that could be referred to an adjudicator. The interim payment amount had become fixed under the default notice mechanism. The matter could only be referred to adjudication where there were competing valuations asserted by the parties under their respective notices.

Kersfield also sought a stay of judgment against it. They argued that it would be wrong to enforce the adjudicator’s award on the basis that Kersfield was not in a position to pay now and manifest injustice would result were Bray unable to repay Kersfield on a final determination of the claim. O’Farrell J rejected this argument on the facts. She was unable to resolve the conflicting evidence relating to the financial positions of the parties. In those circumstances she considered herself bound to lean in favour of enforcement and so refused to stay judgment.

Justin Mort QC acted for the Claimant.

Full Judgment

Counsel

Justin Mort QC

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