Too Much? Not Too Late. Construction Dispute Laws and Adjudication by the Supreme Court.
This news story looks at the significance of the Supreme Court’s first decision on adjudication pursuant to the Scheme for Construction Contracts 1998 (The Scheme) in the case of Aspect Contracts (Asbestos) Limited v Higgins Construction Plc made in June 2015. We believe that the outcome of this adjudication of a construction dispute, which effectively extends the limitation period of a claim, will continue to evolve but it is already clearly a reminder of the temporary nature of adjudication, a recognition of its limitations, and a reassertion of the legal entitlement owed to the paying party.
We look at the Supreme Court’s adjudication in this case, take into account the facts of the case and assess the practical implications for Construction Disputes and the Law, an area which our construction insolvency solicitors specialise in.
Key Points of ‘The Scheme’ for Construction Contracts
- The Scheme contains an implied term giving rise to a separate six year limitation period from the date of payment of an adjudicator’s award.
- A payng party in an adjudication has six years from the date of payment to challenge and recover any overpayment even if the limitation period under the contract has expired.
- Parties should seek to agree that an adjudicator’s decision is binding or seek a final determination otherwise they are at risk of the paying party waiting until the expiry of the contractual limitation period to recover any sums paid.
Adjudication awards in construction disputes are a frequent topic of debate in the Technology and Construction Court (TCC) and recently there has been much discussion concerning the extent of an adjudicator’s jurisdiction in determining amounts properly due.
The court has provided useful clarification that the basic nature of ‘pay now, argue later’ remains steadfast at the core of adjudication. However, the paying party doesn’t usually take the concept of ‘later’ to mean a date that goes beyond the limitation period of the underlying contract. Until now…..
The Supreme Court’s Arbitration Decision in the Construction Dispute between Aspect Contracts and Higgins Construction
June 2015, saw the Supreme Court issue a decision on this case predicated on the facts of a party doing exactly this; a decision which has been eagerly awaited by adjudication practitioners and industry professionals alike.
Aspect Contracts (Asbestos) Ltd v Higgins Construction Plc  UKSC 38 provides the first Supreme Court decision on adjudication pursuant to the Scheme for Construction Contracts 1998, and most importantly sets out a clear determination of the applicable limitation periods associated with an adjudicator’s award.
In many ways the judgement serves as an unequivocal warning to the successful party following adjudication. Put simply – seek a final determination.
In its simplest form, the issue before the court was whether a breach of an underlying contract gives rise to the only cause of action, or, whether an adjudicator’s decision provides a separate cause of action.
Lord Mance’s judgment begins, ‘This appeal raises difficult and important issues …’ He’s not wrong.
The Supreme Court has now answered this debate and in doing so has in effect extended the limitation period of a claim. It now sits as common law that the paying party may commence proceedings six years after a payment is made in accordance with an adjudicator’s decision.
The Facts of this Construction Dispute which initially went in Higgins’ favour after the first adjudication
Higgins Construction, a building contractor planned to redevelop numerous blocks of maisonettes in Hounslow. To this end, Higgins entered into a simple construction contract (i.e. not a deed, and so with a limitation period of six years) with Aspect Contracts (‘Aspect’) to carry out an asbestos survey and report. The survey was conducted and completed by April 2004, and the redevelopment process commenced.
In early 2005 during the redevelopment, Higgins allegedly found asbestos materials containing asbestos which had not been identified in the 2004 report produced by Aspect.
A construction dispute arose, and with negotiation and mediation failing, the matter was referred to adjudication. Here, Higgins claimed a sum of £822,482 in damages plus interest on the basis that Aspect had breached its contractual duties to exercise reasonable skill and care.
Adjudication concluded in July 2009 with a decision in favour of Higgins. Aspect was said to be in breach of its duties, consequentially causing a loss to Higgins. The adjudicator decided that Aspect should pay Higgins a total of £658,017, which it did in August 2009. At this point approximately nine months remained until the expiry of the contractual limitation period. Neither party demonstrated any dissatisfaction with the adjudicator’s decision, and in the mind of Lord Mance, Higgins were ‘evidently content to let matters rest’. As such no final determination was made.
Aspect Commences Proceedings to Recover what it Paid – after the Limitation Period Expired
It was only after the expiry of the limitation period that Aspect found its voice. In February 2012, nearly three years later and without any notice to Higgins, Aspect commenced proceedings with the aim to recover what it termed an overpayment in the sum awarded to Higgins back in August 2009. Aspect’s claim contended that no sum was due to Higgins on an examination of the merits of the original dispute, but significantly Aspect argued that the Scheme contained an implied term giving rise to a wholly separate six year limitation period from the date of payment of the adjudicator’s award. The implied term read that a paying party,
‘… remained entitled to have the decision finally determined by legal proceedings and, if or to the extent that the dispute was finally determined in its favour, to have the money repaid to it.’
In response, Higgins lodged a counterclaim for the balance still owed from the same award. Aspect now elected to raise the limitation plea in response to Higgins’ counterclaim. It argued Higgins had no ability to lodge this claim as the limitation period for bringing a claim under the contract had expired.
January 2013 saw the TCC court give the first instance ruling on the matter ( EWHC 1322 (TCC)). Mr. Justice Akenhead ruled Aspect could not rely on the implied term as it did not exist, and even if it did any claim arising under it would be subject to a limitation period of six years after the performance of the original contract. As such, Aspect was held to be time barred from recovering any alleged overpayment, and no claim existed in restitution due to the absence of any basis to set the adjudicator’s decision aside.
The Court of Appeal sitting in November 2013 reached an opposite conclusion ( EWCA Civ 1541). Lord Justice Longmore submitted a concise unanimously agreed judgement that the Scheme did imply the ability to recover any overpayment. This was not based on any facts specific to the parties, but rather on a reading of the Housing Grants, Construction and Regeneration Act 1996 (HGCRA 1996) and the Scheme.
The Case Goes To The Supreme Court
With permission, Higgins appealed to the Supreme Court. The analysis of the Supreme Court centred on the key question:
‘how far a paying party…is able to disturb the provisional position established by an adjudicator’s decisions’.
The court asked this question on the basis that the pleaded implied term in the first instance did not exist, nor was particularly relevant.
Instead upon a further re-reading of the legalisation (mentioned above) there exists an alternate implied term giving rise to Aspect’s case. This is the steadfast foundation that the adjudicator’s decision is always provisional until finally determined.
Indeed, Lord Mance unequivocally declared that it is a ‘necessary legal consequence of the Scheme…’ that Aspect (or any paying party) must have and indeed does have, a:
‘directly enforceable right to recover any overpayment to which the adjudicator’s decision can be shown to have led, once there has been a final determination of the dispute’.
In respect of a claim in restitution, Lord Mance made clear this right arises on whatever basis,
‘either by contractual implication or, if not, then by virtue of an independent restitutionary obligation’.
The Supreme Court Rules in Aspect’s Favour
In short, the Supreme Court ruling in Aspect’s favour declares the entitlement to obtain a final determination of the dispute between itself and Higgins. The final determination operates as a pre-requisite to enabling the right to any recovery. This is as upon the adjudicator’s decision, whether determined as involving an overpayment or to be wrong entirely, ceases retrospectively to bind.
On the progression of this reasoning, the right to final determination arises therefore directly from the adjudicator’s award and subsequent payment forming a separate cause of action (and a separate limitation period) to the body of the dispute heard by the adjudicator. It is important to mention the upholding of the right also brings with it the obligation of the court to ‘look at the whole dispute’ afresh.
Significantly, this means Higgins (and any party similarly resisting repayment) is not confined to the points it originally raised at adjudication, but instead can ‘rely on all aspects of its claim’. Lord Mance held this follows naturally from the fact ‘the adjudicator’s actual reasoning has no legal or evidential weight’. Final determination therefore is to examine the justification for any payment ordered and made; and this was the duty of the court.
Nevertheless, the limitation argument pleaded by Aspect in response to Higgins’ counterclaim (and accepted by the court), prevents any final determination resulting in an order for Aspect to pay Higgins any more than it received under the adjudicator’s decision. This is as any such order would be pursuant to a claim under the original contract, which was now time barred.
In response to this declaration, Higgins complained Aspect in reality is awarded a ‘oneway throw’ bearing no risk of ending up worse off. Taking a hard-line stance, and embodying a clear message to the wider construction sector, the Supreme Court states this ‘advantage’ arises as a direct consequence of Higgins’s own decision not to commence proceedings earlier within the contractual limitation period. If it had done so, it may have hoped to improve upon the adjudication award, or obtain any amount not first awarded.
The Practical Implications of the adjudication in this construction dispute
Notably, the Supreme Court also, for the first time, considered the application of the Limitation Act 1980 to negative declarations. The court ruled that a declaration that, for example, establishes a person has not broken a contract or committed a tort, is not a ‘cause of action’ and so is not subject to any limitation period.
In the wider scheme of construction disputes, the facts of Aspect are relatively unique. The combined nature of the construction industry and adjudication often act as a breeding ground for more complex disputes involving multiple adjudications, claims and counterclaims. As such both parties are often proactive in achieving a final determination or agreement to remove the risk of later dispute. That said, moving forwards, the significance of the Aspect decision will undoubtedly continue to evolve. As it stands at this point, there are already a number of takeaways.
Recent key cases demonstrate the turbulent nature in valuing payments ordered under adjudication. Set against the back-drop of interim payment applications, pay less notices, and payment notices parties can be ordered to pay an amount in excess of what is actually owed. The ruling in Aspect is therefore yet another reminder of the temporary nature of adjudication, a recognition of its limitations, and a reassertion of the legal entitlement owed to the paying party.
For the receiving party, the message is simple. Seek to agree that the adjudicator’s decision is binding, or alternatively begin proceedings to obtain a final determination. Without either, the paying party may wait until the expiry of the contract limitation period before attempting to recover any sums paid. Notwithstanding this, the use of contractual wording to achieve finality of an adjudicator’s decision is now likely to be high up on the checklist of clauses to be included in contracts incorporating the Scheme.
For the paying party, the enjoyed exclusivity of the implied term favourably makes it possible for it to seek repayment of sums under an adjudication decision up to six years later. Conversely, the above warning to the receiving party becomes an advantage. An election to wait until the expiry of the limitation period of the contract now acts as a risk mitigation exercise removing the chance of any additional award against the payer.
Our Construction Insolvency Solicitors Can Help
As this news story shows, the area of construction dispute laws is a complex one. Our team is experienced in this area, and often advises clients faced with financial problems caused by construction disputes. If you or your company have a Construction Insolvency dispute or problem, contact us or call us on 0121 200 7040 for a free initial discussion.