WRW Construction Ltd v Datblygau Davies Developments Ltd

[2020] EWHC 1965 (TCC)

WRW sought summary enforcement of an adjudication decision. DDD had sought a valuation of the post-termination final account. DDD claimed around £3.3 million. In reply, WRW had said that:

“The proper valuation of the post-determination final account in accordance with Clause 8.7.4 of the Contract leads to a position in which DDD is indebted to WRW. Whilst WRW accept that the Adjudicator has no jurisdiction to order payment to be made to WRW, the Adjudicator has been asked by DDD to value the post-terminational final account. It is respectfully submitted that the Adjudicator should find that the proper value of the post-termination final account is as set out above. Put another way, the Adjudicator should conclude that the sum due and payable by WRW to DDD is -£695,035.63.”

Recorder Singer QC noted that it was clearly accepted by WRW during the adjudication that the Adjudicator did not have jurisdiction to order a payment of money from DDD, even though DDD were seeking a decision that sums were due to it. 

The Adjudicator’s assessment of the total value of the account was that there was an amount due to WRW of £568k. The Adjudicator stated that: 

”I decide that WRW shall pay to DDD the sum of -£568,597.32 (negative) within 7 days of the date of my Decision.”

The Judge held that, despite the “opaque language”, this meant that the Adjudicator was seeking to award payment to WRW from DDD, having decided the balance of account between the parties. The issue before the court was whether the Adjudicator had jurisdiction to order a payment to WRW and whether payment was due to WRW as a result of the valuation exercise which temporarily bound the parties. Recorder Singer QC accepted that the Adjudicator did not have jurisdiction to award a monetary sum to WRW. However, the issue before the Judge was whether, on the basis of a valid, binding valuation of the post-termination account, a court’s enforcement of that valid award can include an order for payment of the sum due as a consequence of the binding valuation, or not. The Judge said:

“there is no bar on the basis of the authorities ... enforcing a temporarily binding valuation in an adjudication award by making an order for payment of the monies due as a result of that valuation. Indeed ... it would be contrary to principle and established authority for the Court to effectively force a party who has the benefit of an award in its favour as far as a balance being due to it, thereafter to have to commence a further adjudication (to which there is no defence) for the purpose of obtaining an order for payment from the Adjudicator before returning to the Court if necessary, for further enforcement proceedings.”

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