J & B Hopkins Ltd v A & v Building Solution Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Roger ter Haar |
| Judgment Date | 16 June 2023 |
| Neutral Citation | [2023] EWHC 1483 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Docket Number | Case No: HT-2022-000444 |
[2023] EWHC 1483 (TCC)
Mr Roger ter Haar KC
Sitting as a Deputy High Court Judge
Case No: HT-2022-000444
Case No: HT-2023-000006
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT (KBD)
Royal Courts of Justice
Rolls Building
London, EC4A 1NL
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT (KBD)
Royal Courts of Justice
Rolls Building
London, EC4A 1NL
James Frampton (instructed by Hawkswell Kilvington) for the Claimant
Alex Paduraru (a director of the Defendant Company) for the Defendant.
Hearing date: 1 June 2023
APPROVED JUDGMENT
This judgment was handed down by the court remotely by circulation to the parties' representatives by email and released to The National Archives. The date and time for hand-down is deemed to be 16 June 2023 at 10.30am
Mr Roger ter Haar QC:
There are two actions before the Court arising out of disputes in respect of the same project.
The first of those two actions in time (“Action 444 of 2022”) was brought by J & B Hopkins Limited (“J&BH”) to enforce an adjudication decision of Mr Smith dated 6 July 2022 (“the Smith Decision”). In a judgment handed down on 15 February 2023 I granted summary judgment in the sum of £96,918.88.
The second of those two actions (“Action 6 of 2023”) was brought by A & V Building Solution Ltd (“A&V”) and claims various sums from J&BH as I discuss in more detail below.
There had previously been a third action started by J&BH in which J&BH challenged the legal basis of a decision of a different adjudicator, Mr. Blizzard. Mr. Blizzard produced a decision dated 19 January 2022. The action started as a pre-emptive strike before Mr. Blizzard had produced his decision. That action (“Action 464 of 2021”) was first decided by Eyre J. in a judgment dated 12 April 2022, but an appeal to the Court of Appeal was substantially successful ( [2023] EWCA Civ 54).
The matters presently before me are as follows:
(1) To determine the amount of interest to be awarded in J&BH's favour in action 444 of 2022;
(2) To determine the appropriate award of costs in action 444 of 2022;
(3) To determine A&V's application for a stay of execution in action 444 of 2022;
(4) To determine J&BH's application for a stay of action 6 of 2023 until the enforcement judgment in action 444 of 2022 has been complied with;
(5) To determine J&BH's application for summary judgment and/or a strike out of the Claim Form in action 6 of 2023;
(6) To determine J&BH's application for security for costs in action 6 of 2023;
(7) To determine A&V's application for Judgment in Default to be entered for A&V against J&BH in the sum of £370,611.63.
Background
The background to what I have to consider in this judgment is largely set out in the judgment of the Court of Appeal referred to above and in my judgment in action 444 of 2022 ( [2023] EWHC 301 (TCC)). I summarise that background briefly here.
J&BH was the mechanical and electrical contractor for a project at the University of Sussex. By a subcontract dated 18 December 2019, J&BH engaged A&V to carry out certain mechanical works only, as per the Subcontract Scope of Works.
A&V's works were delayed. A&V says that this was the result of sundry breaches of the subcontract on the part of J&BH. A&V's complaints are described in paragraphs 13 and 21 of my previous judgment.
Towards the end of A&V's time on site it submitted interim applications for payment. In particular A&V made an Application No. 14 on 22 March 2021. J&BH responded to the application, setting out its valuation and concluding that, in its view, no further sums were due to A&V.
On 17 November 2021 A&V commenced an adjudication based on its Application No. 14. This was the adjudication determined by Mr. Blizzard.
On 19 January 2022 Mr. Blizzard issued his decision. He decided that a further Interim Payment was due from J&BH to A&V in the sum of £138,010, excluding VAT. He also ordered J&BH to pay A&V 50% of his fees of £29,000 plus VAT, namely £14,500 plus VAT.
Meanwhile, on 2 December 2021, at a time when the adjudication was still ongoing, J&BH issued Part 8 proceedings (“action 464 of 2021”), seeking declarations as to the invalidity of application No. 14.
On 12 April 2022 Eyre J. made an order in action 464 of 2021 as follows:
(1) Declaring that:
a) Application 14 was not a valid payment application under the Sub-Contract because it was issued too late;
b) Payment Notice 14 was a valid payment notice under the Sub-Contract;
c) [A&V] was not entitled to any payment in respect of Application 14.
(2) Ordering A&V to pay J&BH's costs of the proceedings summarily assessed in the sum of £27,750.
A&V now commenced a further adjudication seeking in its Notice of Adjudication as its primary relief:
“The Adjudicator is requested to review and decide the matters pertaining to the Referring Party's claim for the breaches and subsequent Final Account for outstanding monies/late payment considered due for the works to the Moulescoomb project in the sum of £455,526.53 plus VAT or other such sums as the Adjudicator shall determine ….”
The Adjudicator in this second adjudication was Mr. Don Smith. He issued his Decision on 6 July 2022. As set out in my previous judgment, he decided that A&V had been overpaid and ordered A&V to pay £82,956.88 to J&BH and, in addition, ordered A&V to pay his fee of £13,962 and decided that, in the event A&V failed to pay his fee and J&BH was obliged to make payment, J&BH was entitled to recover the sum paid as part of his Decision.
A&V appealed against Eyre J.'s order in action 464 of 2021. Argument in that appeal was heard on 17 January 2023 and judgment was delivered on 27 July 2023. The appeal was successful to the extent that declarations 1(a) and 1(b) made by Eyre J. were quashed and his order as to costs was set aside.
Before that appeal was heard, J&BH issued action 444 of 2022 seeking to enforce Mr. Smith's Adjudication Decision. The enforcement application in that action came before me on 19 January 2023. I reserved judgment: judgment was handed down on 15 February 2023. I granted J&BH summary judgment in the sum of £96,918.88.
On 23 February 2023 A&V issued an application seeking a Stay of Execution of my judgment in action 444 of 2022.
On 9 January 2023 A&V issued action 6 of 2023. I refer below to the relief sought in that action and the subsequent applications made by J&BH.
As set out at paragraph 5 above, there are a number of matters to be determined in both action 444 of 2022 and 6 of 2023. On 27 February 2023 Eyre J. ordered that all the applications should be listed for hearing at the same time. He also gave directions as to the filing and service of evidence.
Interest in action 444 of 2022
In his skeleton argument for the hearing before me on 1 June 2023 Mr. Frampton on behalf of J&BH sought a total of £119,786.97 or £118,565.20 including costs.
The difference in figures turns upon whether interest is awarded under the Late Payment of Commercial Debts (Interest) Act 1998 or under the Senior Courts Act 1981, the latter producing a slightly lower figure.
In argument before me, Mr. Frampton conceded that in this case the appropriate basis for the award of interest would be under the 1981 Act, and that is the basis upon which interest will be awarded. The amount claimed by J&BH on that basis appears to be appropriate.
J&BH's costs in action 444 of 2022
It is the practice of this court to award costs of successful adjudication enforcement applications upon the indemnity basis.
The amount claimed by J&BH is £20,822. Whether on the standard basis or on the indemnity basis this seems to me a reasonable sum, and I assess the amount of costs payable by A&V to J&BH as the costs of action 444 of 2022 in that sum. The costs of the application for a stay of execution are not included in that sum.
A&V's application for a stay of execution in action 444 of 2022
As set out above, A&V seeks a stay of execution of the judgment which I have given in action 444 of 2022.
The application is supported by a short witness statement from Alexandru Padurura, a director A&V (who represented A&V at the hearing before me on 1 June 2023).
The relevant part of that statement is very short and reads as follows:
“2. This Witness Statement is made in support of the Defendant's Application for a Stay of Execution of the Approved Judgment [HT-2022-000444] dated 15 February 2023.
“3. I make this Statement from the facts and matters within my own knowledge, which are contained within the files maintained by the Defendant in respect of this matter. Where I refer to facts and matters outside my own knowledge, I identify the source of those facts and matters. I confirm that the contents of this Statement are true to the best of my knowledge and belief.
“4, I make this statement to support that everything [which] is stated in the Defendants [A&V] submissions in relation to the Approved Judgment and Cost is true.”
The submissions referred to in that statement refer to five Grounds as follows:
“ Ground 1:
“ Pending the outcome of the High Court “Sealed” Claim Number – HT-2023-000006 [Judgment in Default] [please refer to appendix 1 below] which was duly served on the Claimant [JBH] on 1 st of February 2023, an acknowledgment of service was issued on 2 February 2023 by JBH legal representatives [please refer to appendix 2 below] and JBH's Defence to A&V's claim is due to be provided by 1 March 2023.
“ Ground 2:
“The Defendant is unable to pay to the Claimant the judgment sum of...
To continue reading
Request your trial
-
J & B Hopkins Ltd v A & v Building Solution Ltd
...part. Otherwise I adjourned the applications. 7 My judgment handed down on 16 June 2023 can be found under Neutral Citation Number [2023] EWHC 1483 (TCC). This judgment should be seen as a supplement to that earlier judgment. Accordingly I do not repeat herein the background materials cont......
-
J & B Hopkins Ltd v A & v Building Solution Ltd
...two actions I have previously handed down three judgments: (1) On 15 February 2023: [2023] EWHC 301 (TCC); (2) On 16 June 2023: [2023] EWHC 1483 (TCC); (3) On 6 October 2023: [2023] EWHC 2475 (TCC). 2 I do not repeat matters already set out in one or more of those 3 In this judgment, as ......
-
Legal Developments In Construction Law
...sought and a no-set off clause is a very strong factor in the discretionary exercise. J & B Hopkins Ltd v A & V Building Solution Ltd [2023] EWHC 1483 3. Is the label "heads of terms" Sometimes parties' negotiations end with a binding contract. Sometimes, however, the commitment to a bindin......