Actavo UK Ltd, the claimant, was a scaffolding and building services sub-contractor. Doosan Babcock Ltd, the defendant, was a contractor working mainly in the energy sector. The defendant sub-contracted the claimant to carry out scaffolding, pipe, steel and painting works.

The defendant failed to pay and the claimant commenced an adjudication for an interim payment (the first adjudication). The adjudicator determined that the defendant should pay £630,000 to the claimant and that interest provisions in the Late Payment of Commercial Debts (Interest) Act 1998 (the ‘Act’) applied (the first award). The claimant commenced the instant proceedings for summary judgment to enforce the adjudicator's decision.

Whilst those proceedings were ongoing, the defendant asserted that a dispute had arisen in relation to the value of the final account for the works and started the second adjudication. The adjudicator in the second adjudication determined the final value of the works and held that £60,000 was due to the claimant (the second award). Two days before the hearing of the summary judgment application to enforce the first award, the defendant served an amended defence to the summary judgment application on the grounds that the first adjudicator had erred in relation to the issue of interest on the first award, and sought to reduce the sum due to the claimant by relying on the second award.

The defendant argued that there had been a contractual agreement in relation to the interest rate evidenced by a previous course of dealing. The defendant also issued Part 8 proceedings seeking a declaration that the sum to be paid to the claimant was £60,000, and that the Act did not apply in relation to interest.

O'Farrell J enforced the first adjudicator's decision finding that, even if he erred by applying the Act to an interim payment (rather than the contractual rate of 1% over base), it was clearly a matter falling within the adjudicator's jurisdiction and the claimant was entitled to enforce the decision in full.

O'Farrell J followed the guidelines laid down in Hutton Construction Ltd v Wilson Properties (London) Ltd [2017] EWHC 517 (TCC) to deal with adjudication enforcement and simultaneous Part 7 and Part 8 proceedings. Also, the court looked at the guidance in HS Works Ltd v Enterprise Managed Services Ltd [2009] EWHC 729 when dealing with the question of whether one adjudicator's decision could be set off against the other with only the balance being ordered to be paid.

O’Farrell J decided that the issue of whether the parties had agreed a rate of interest by reference to a course of dealing was unsuitable for resolution at the hearing of a summary judgment application to enforce a decision of an adjudicator (Hutton Construction v Wilson Properties). This was because the issue could not be resolved simply by reference to the documents before the court at a short hearing. In any event, O'Farrell J decided that she could not determine the interest issue at the hearing and that there were doubts about the enforceability of the adjudicator’s decision in the second adjudication. A further hearing was ordered to deal with these issues. This case serves to emphasise that the TCC court is seeking to follow the guidance of Coulson J. in the case of Hutton Construction and serves as a further reminder to practitioners of the “steep hurdle for any responding party to clear in order to invalidate an adjudication decision”.