Wragge Lawrence Graham & Co

UK 200 2013 position: 25

All change — payment of adjudication decision does restart the clock for losing party

The Court of Appeal has now reversed the decision in Aspect Contracts (Asbestos) Ltd v Higgins Construction plc, concluding that payment of the adjudication decision constitutes a new cause of action and restarts the limitation clock for the paying party.

Aspect was the losing responding party in an adjudication in 2009 under the Scheme for Construction Contracts. The adjudicator found that Aspect was in breach of contract (back in 2004–05) for failing to conduct a proper and appropriate survey and failing to identify the presence of asbestos-containing material. A decision was issued in favour of Higgins, resulting in Aspect paying Higgins £658,017 (about £200,000 less than was being claimed) in August 2009.

Aspect then commenced legal proceedings in 2012 in the Technology and Construction Court for a negative declaration that it was not liable to Higgins for breach of contract. In doing so, it relied on an implied term that an unsuccessful party was entitled to have an adjudication dispute finally determined in court proceedings and was entitled to repayment of monies it had paid, if successful in those proceedings…

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