Cases - David McLean Housing Contractors Ltd v Swansea Housing Association Ltd
Record details
- Name
- David McLean Housing Contractors Ltd v Swansea Housing Association Ltd
- Date
- [2002]
- Citation
- BLR 125 TCC
- Legislation
- Keywords
- Adjudication - construction contract - contents of adjudication notice - valid withholding notice - enforcement of adjudicator's decision
- Summary
-
Essentially the issues between the parties in this matter were whether the claimant contractor was to be paid an amount of liquidated damages to which the defendant employer considered that it was entitled.
The issue arose out of an adjudication that had been referred by the contractor. The notice of intention to adjudicate contained six heads of claim, including the contractor's entitlement to loss and expense and extensions of time, but did not include a reference to liquidated damages.
On production of the adjudicator's decision the employer issued a notice of intention to deduct the liquidated damages, taking into account the adjudicator's decision as to extensions of time.
The judge held that the defendant had a realistic prospect of success in demonstrating that the notice of intention to deduct liquidated damages was a valid withholding notice against the adjudicator's decision. However, even if he was wrong on this point, the judge concluded that the liquidated damages raised by way of counterclaim in the application for summary judgment was a viable counterclaim. No defence to it had been raised and there was no realistic prospect available to the claimant for resisting payment on that counterclaim.
Therefore the judge refused the claimant's application for summary judgment as the defendant had realistic prospects of success.