Case Nos: HT-2024-CDF-000004 - [2024] EWHC 933 (TCC)

This is my judgment upon two linked claims arising in respect of an adjudication decision dated 23 February 2024 (“the Decision”), whereby the adjudicator, Mr Robert Shawyer, decided that £207,076 was due from Morganstone Limited (“Morganstone”) to Birkemp Limited (“Birkemp”) upon the latter’s interim payment application dated 31 August 2023 (“the August Application”).

By a Part 8 claim issued in this court on 4 March 2024, Morganstone claims declarations (1) that Birkemp had no contractual right to make the August Application or any interim payment application after March 2023 and is therefore not entitled to be paid in respect of the August Application and (2) that, inasmuch as the Decision decided that Birkemp was entitled to make the August Application and to be paid in respect of it, the Decision is wrong in law and unenforceable. Birkemp defends the Part 8 claim on the basis that, on a true construction of the parties’ contract, it had the right to make the August Application and has the right to make subsequent interim payment applications.

By a Part 7 claim issued on 5 March 2024 in the Business and Property Courts in Bristol and subsequently transferred by consent to this court to be heard along with the Part 8 claim, Birkemp seeks enforcement of the award in the Decision. It is common ground that, if Morganstone succeeds on the Part 8 claim, the Part 7 claim must be dismissed. If Morganstone fails on the Part 8 claim, it defends the Part 7 claim on the basis that the adjudication process breached natural justice, in that the adjudicator failed to consider defences advanced by Morganstone, and the award is therefore unenforceable.

I shall consider the Part 8 claim first, though there is a degree of overlap between the issues raised in the two cases. The Part 8 claim is potentially dispositive of the Part 7 claim. It raises the basic question whether Birkemp was entitled to make any interim payment application after March 2023. If it was not so entitled, it was not entitled to make the August Application and the award in the Decision is unenforceable.

I am grateful to Mr Harry Smith, counsel for Morganstone, and Mr Luke Wygas, counsel for Birkemp, for their clear and succinct submissions.