Morganstone Ltd v Birkemp Ltd [2024] EWHC 933 (TCC) (25 April 2024)

Morganstone Ltd v Birkemp Ltd [2024] EWHC 933 (TCC) (25 April 2024)

Clause 10 of the subcontract provided a continuing right to interim payments in the absence of an agreed payment schedule, so Birkemp was entitled to make the August 2023 application. However, the adjudicator's decision was unenforceable because he wrongly excluded Morganstone's set-off defences, taking an erroneously restrictive view of his jurisdiction and breaching natural justice.

Citation
[2024] EWHC 933 (TCC)
Parties
Part 8 Claimant; Part 7 Defendant: Morganstone Limited; Part 8 Defendant; Part 7 Claimant: Birkemp Limited
Jurisdiction
England and Wales
Judgment Date
25 April 2024
Procedural Posture
Linked Part 7 and Part 8 Claims (tcc) / Judgment After Trial
Outcome
Both Part 8 and Part 7 claims dismissed.
Legal Topics
Adjudication Enforcement, Interim Payments, Contractual Interpretation, Natural Justice, Set Off and Cross Claims
Construction Law Contract Law Civil Procedure Adjudication Enforcement Interim Payments Contractual Interpretation Natural Justice Set Off and Cross Claims

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Parties

Morganstone Limited

Part 8 Claimant; Part 7 Defendant

Birkemp Limited

Part 8 Defendant; Part 7 Claimant

Procedural Posture

Linked Part 7 and Part 8 Claims (tcc) / Judgment After Trial

Legal Issues

  1. 1 Whether Birkemp was contractually entitled to make interim payment applications after March 2023
  2. 2 Whether the adjudicator's decision was enforceable given alleged breach of natural justice

Ratio Decidendi

Clause 10 of the subcontract provided a continuing right to interim payments in the absence of an agreed payment schedule, so Birkemp was entitled to make the August 2023 application. However, the adjudicator's decision was unenforceable because he wrongly excluded Morganstone's set-off defences, taking an erroneously restrictive view of his jurisdiction and breaching natural justice.

Court Disposition

Both Part 8 and Part 7 claims dismissed.

Orders

  • Part 8 claim dismissed: Birkemp entitled to make interim payment applications after March 2023.
  • Part 7 claim dismissed: Adjudicator's decision unenforceable due to breach of natural justice.