adjudicator got it wrong and counter-sued for the shortfall of £331,855+ interest. And this is where the bricklayers and lawyers start falling about laughing. Aspect argued in reply to Higgins that Higgins was out of time on that claim for more money, but Aspect was in time to be repaid. Dear me no, said judge No.1. You are both out of time. Let’s face it these two companies had let oodles of time slip by sitting on their hands. The six-year limitation clause defeated both of them, he said. But Aspect now had the bit between its teeth. It asked three more judges to reverse judge No.1. It argued that the losing party (Aspect) in adjudication had six years from when the “wrongful overpayment” was made to seek a declaration that the order to pay was wrong and get its money back. Put another way, the time bar didn’t apply to “negative declarations” meaning, said Aspect, “we paid too much in the adjudication”. As for Higgins, its claim for the total amount, they said, remained a claim under the contract for negligent services provided. So time ran out under the contract but not under the adjudication. Higgins was coming under the litigation to argue for its rights under the contract. But Aspect was coming for its right to be re-paid what was ordered in the adjudication. Subtle, isn’t it? And the three more judges agreed. That was the Court of Appeal. Ouch, said Higgins. If Aspect can argue the adjudicator was wrong, then Higgins can argue the adjudicator was wrong. Right?
Wrong, said five more judges, this time in the Supreme Court. Aspect won again. Look, most adjudications are conducted under “the Scheme”. So too was this one. So it is important to understand this judgment. The parties argued their rights under their contract in front of the adjudicator. That had to be done within the six-year limitation period. (Sometimes you sign your contracts as a deed. The limitation period then is 12 years). No problem thus far. By now four years of the six was used up. Both had two years left to begin the dispute process all over again in court. But neither did. In year seven, Aspect began a High Court action for repayment. Higgins countered for more money. The five later judges agreed with the previous three. An overpayment can be recovered. The Scheme says the adjudicator’s decision is binding for the time being. All Aspect has to show is that the money ordered by the adjudicator is subsequently shown not to have been due. There is said to be an implied term or principle of return or restoration (the lawyers call it restitution). That’s different seemingly from Higgins arguing for damages under the contract.
All these nine judges were deployed to decide whether both Aspect and Higgins could now re-argue the dispute about the alleged negligence. And when it goes back into court for the substantive dispute, you can bet on it that a whole range of arguments will be advanced that were not put to the adjudicator. But if it is found that Higgins was entitled to more than they got in the adjudication, they won’t be able to enforce that decision because they’ll be out of time. I wonder if the eight judges are any good at bricklaying?
Design & build contracts spell bad news, most of all for the poor blighters who buy what’s built. Design should be left to designers.
The builder who takes on design has to have all the skills of an architect. Damn it, it takes seven years of training and testing before a man can call himself an architect.
Placing a contract with a builder to design and build is daft. Forever have I said so. Before I took