HT-2023-000006 - [2024] EWHC 1510 (TCC)

Fecha: 18-Jun-2024

Mr Blizzard’s Fees

Mr Blizzard’s Fees

424.

This claim is for £17,400 under item 4. Item 5 concerns interest.

425.

Mr Frampton helpfully set out the relevant background facts, issues and J&BH’s position in his written Opening Submissions:

Issues

359.

During the Blizzard Adjudication, JBH challenged Mr Blizzard’s jurisdiction. A&V has never obtained an order enforcing the Blizzard Decision. Nevertheless, taking note of the Court of Appeal’s comments on appeal (albeit not following any debate or submissions on the point), JBH does not maintain its challenge to Mr Blizzard’s jurisdiction.

360.

The issue for the Court to determine is whether there was a binding settlement as to the sums due under the Blizzard Decision which included Mr Blizzard’s fees?

Was there a binding settlement as to the sums due under the Blizzard Decision?

361.

The relevant chronology is as follows:

361.2

On 17 November 2021, A&V commenced the Blizzard Adjudication.

361.2

On 2 December 2021, the same date on which it served its Response, JBH commenced Part 8 proceedings seeking declarations that Payment Application 14 was invalid and that its Payment Notice 14 was valid.

361.3

Mr Blizzard’s Decision was provided on 19 January 2022 [Vol 3/ Tab 29/ p1217].

361.4

On 25 March 2022, A&V belatedly issued proceedings to enforce the Blizzard Adjudication Decision.

361.5

On 4 April 2022, A&V served the enforcement proceeding on JBH.

361.6

On 12 April 2022, Eyre J granted judgment in favour of JBH, making declarations that Application 14 was invalid, Payment Notice 14 was valid and A&V was not entitled to any payment for Application 14. The order is at [Vol 8/ Tab 35/ p3581]. The judgment is at [4204].

361.7

On 13 April 2022, JBH wrote to A&V offering to “drop hands’ on the ill-advised enforcement proceedings with your claim being discontinued and both parties bearing their own costs” [Vol 7/ Tab 34/ p3312-3]. JBH’s offer was for both parties to agree not to pursue any entitlements they may have in respect of the enforcement proceedings, that included the first adjudicator’s fees.

361.8

On 14 April 2022, A&V replied stating the enforcement proceedings were “withdrawn and both parties are to bear their own costs.” [Vol 7/ Tab 34/ p 3314] A&V thereby accepted JBH’s offer. A&V purported to “reserve our position regarding the Adjudicator’sfees”.

361.9

On 21 April 2022, A&V provided a consent order to record the agreement; email at [Vol 7/ Tab 34/ p3315]. The consent order [Vol 7/ Tab 34/ p3322] did not refer to the Adjudicator’s fees.

361.10

JBH returned a signed copy of the consent order [Vol 7/ Tab 34/ p3324] and [3331-2].

361.11

It appears that A&V never signed or filed a copy of the consent order. However, on 21 April 2021 it did file a notice of discontinuance [Vol 7/ Tab 34/ p3333].

362.

JBH’s position is that, in the circumstances, there was a binding agreement that the parties would not pursue any entitlements they each had in respect of the enforcement of the First Adjudication Decision, including any claim by A&V for Mr Blizzard’s fees and any claim by JBH for its costs of the discontinued enforcement proceedings.

363.

A&V’s position is understood to be that there was a binding agreement, save in respect of the Adjudicator’s fees. That argument is understood to be based on the reservation in its email of 14 April 2022. However, the purported reservation was contrary to the remainder of the email and, therefore, ineffective.

364.

In the well-known case of Butler Machine Tool Co Ltd v Ex-cell-o Corporation (England) [1979] 1 WLR 401:

364.1

A seller had offered to sell a machine on its terms. One clause of these terms was:

“All orders are accepted only upon and subject to the terms set out in our quotation and the following conditions. These terms and conditions shall prevail over any terms and conditions in the buyer's order.”

364.2

The buyer responded attaching its own terms, including a tear-off acknowledgment to be signed below the statement “We accept your order on the terms and conditions stated thereon—and undertake to deliver by —Date—signed.”

364.3

The seller returned the signed acknowledgement but referred back to its quotation in the covering letter (“This being delivered in accordance with our revised quotation of May 23”). The seller argued that this was sufficient to incorporate its terms and conditions and was the so-called “last shot”.

364.4

The Court of Appeal held that the contract was concluded on the buyer’s terms upon the seller returning the signed acknowledgement. The buyer’s response was a counteroffer which was accepted by the seller signing the acknowledgement. Lawton LJ explained that the reference in the covering letter to the seller’s prior quotation did “not bring into the contract the small print conditions on the back of the quotation.”

365.

Applied to this case, by confirming its agreement and/or providing a consent order A&V confirmed its agreement to JBH’s offer. No part of that offer included a term that A&V was still entitled to pursue JBH for proceedings relating to Mr Blizzard’s fees.

366.

Alternatively, if the Court decides there was no binding agreement in respect of the Mr Blizzard’s fees. That must mean there was no binding agreement at all. JBH would remain entitled to its costs of the discontinued enforcement proceedings. Per CPR 38.6:

“Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant against whom the claimant discontinues incurred on or before the date on which notice of discontinuance was served on the defendant.”

426.

In my judgment the key issue is the effect of A & V’s letter of 14 April 2022. That letter was short and said:

We confirm that the Enforcement claim HT-2022-000101 is withdrawn and both parties are to bear their own costs.

At the same time, we reserve our position regarding the Adjudicator’s fees. Your client is still liable for the Adjudicator fees as such we look forward to receiving the payment in full in regards of the Adjudicators fees including the interest.

427.

In my view this was a counteroffer to J&BH’s offer in respect of the withdrawal of action HT 2022-000101. The effect was that neither party would pursue any application for costs of those proceedings. But there was no agreement that A & V could not pursue a claim for recovery of the fees paid to Mr Blizzard.

428.

The consent order which followed upon the agreement between the Parties did not affect the validity or otherwise of Mr Blizzard’s Decision, subject to J&BH’s continuing jurisdictional objection, which has been held to be invalid by the Court of Appeal.

429.

In this judgment I am considering the merits of Mr Blizzard’s Decision in the sense that I am deciding what sum or sums is due from the one to the other. That will have the effect of reviewing and revising his decision.

430.

In my judgment, the appropriate course to adopt is to invite the submissions of the Parties on this head of claim after they have had the opportunity to consider this judgment.