Andrew Bartlett KC and Isabel Hitching headed to Supreme Court: Aspect Contracts (Asbestos) Ltd v Higgins Construction plc [2014] 1 WLR 1220
On 15 May 2014 the Supreme Court (Lords Mance, Clarke and Sumption) gave Higgins permission to appeal to the Supreme Court from the recent decision of the Court of Appeal.
The case will be the first time that the Supreme Court has considered the adjudication regime and in particular the question of how and when a party can seek repayment of monies paid under an adjudicator’s decision.
The Court of Appeal decision held that the right to recover monies paid under an adjudicator’s decision was based on an implied term that arose on payment. A paying party therefore had six years from the date of payment to bring proceedings to recover it even though time for bringing the dispute which had been the subject of the adjudication to court might long have lapsed.
Isabel Hitching, on behalf of Higgins, had successfully contended before Akenhead J [2013] BLR 417 that there was no such term. Repayment could be ordered by way of relief by a court finally determining the dispute between the parties if it held that payment should not have been made. The implied term was therefore unnecessary. Further there was no restitutionary claim: the payment was properly made in accordance with a temporarily binding adjudicator’s decision. Even if a court finally determined the dispute differently to the adjudicator the payment was still one that was properly made. To give effect to its final determination of the dispute the court could order repayment. If the paying party did not bring the dispute to court for final determination within the time period applicable to the original dispute it could not seek repayment.
The Court of Appeal’s decision created significant imbalance between parties to an adjudication and anomalies in application. Please click here for the news article on the Court of Appeal decision.
A differently constituted Court of Appeal in Walker Construction (UK) Ltd v Quayside Homes Ltd [2014] BLR 215 preferred the analysis of Akenhead J.
It is to be welcomed that the Supreme Court will have the opportunity to bring clarity to these issues which lie at the heart of the adjudication regime.
