The adjudication war on valuations

Adjudication war on valuations

A useful reminder in the adjudication war on valuations

The Court of Appeal recently threw out a claim that summary judgement should not be enforced because the adjudicator had decided issues in a second decision which had already been in dispute and decided in an earlier decision.

The case of Waldeck Associates Ltd v Decomo UK Ltd [2017] EWHC 961 (TCC) does not make any new law but the Court of Appeal endorsed the decision in Harding (t/a MJ Harding Contractors v Paice and another [2015] EWCA Civ 1231. 

This makes success even harder in the smash and grab adjudication routine, which frequently used the argument that (usually) the employer’s cross adjudication for the valuation had already been decided in (usually) the contractor’s earlier adjudication requiring payment of a notified sum if no pay less notice had been issued.

In the Waldeck case, the adjudicator very carefully skirted round his earlier decision.

He had decided in the first adjudication that sums due under an interim payment were subject to a fee proposal that acted as a cap but below that sums could be modified by reference to an agreed schedule of rates.

In the second adjudication the dispute was about payment for work that the claimant argued included work not within the original fee proposal. This was accepted by the adjudicator who decided the value of work outside the cap using the schedule of rates.

The case also acts as a reminder, particularly to consultants to draft their fee proposals very carefully.

It is very tempting in the rosy glow of a new project to be too expansive or maybe even vague as to what the fee covers and then get caught out when the client’s expectations as to what is included turns out to be far more comprehensive than the consultant intended.