Hart (t/a D W Hart & Son) v Smith & Anor

Hart (t/a D W Hart & Son) v Smith & Anor

The Defendants are not entitled to set off the sum of £71,314.29 for liquidated damages against the sum awarded to the Claimant in the first adjudication because the adjudicator’s decision was merely declaratory and did not make any award or order for payment of liquidated damages. The right to set off does not arise as the entitlement to liquidated damages does not follow logically from the adjudicator’s decision, and enforcement is limited to the sums expressly awarded by the adjudicator.

Parties
Claimant/part 20 Defendant: Mr S G Hart t/a D W Hart & Son; Defendant/part 20 Claimant: Mr Dennis Smith; Defendant/part 20 Claimant: Mrs Jacqui Smith
Jurisdiction
England and Wales
Judgment Date
03 September 2009
Procedural Posture
Construction Contract Adjudication Enforcement / Judgment on Applications to Enforce Adjudicator's Decisions and Set Off Claims
Outcome
Judgment for the Claimant; Defendants' set-off claim for liquidated damages dismissed
Legal Topics
Adjudication Enforcement, Set Off Rights, Liquidated Damages, Certificates of Non Completion
Construction Law Contract Law Adjudication Enforcement Set Off Rights Liquidated Damages Certificates of Non Completion

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Parties

Mr S G Hart t/a D W Hart & Son

Claimant/part 20 Defendant

Mr Dennis Smith

Defendant/part 20 Claimant

Mrs Jacqui Smith

Defendant/part 20 Claimant

Procedural Posture

Construction Contract Adjudication Enforcement / Judgment on Applications to Enforce Adjudicator's Decisions and Set Off Claims

Legal Issues

  1. 1 Whether the Defendants are entitled to set off liquidated damages against sums awarded to the Claimant in adjudication
  2. 2 Whether the adjudicator's declaration of entitlement to Certificates of Non-Completion gives rise to an enforceable debt for liquidated damages
  3. 3 Whether the sums awarded in two adjudications can be set off against each other

Ratio Decidendi

The Defendants are not entitled to set off the sum of £71,314.29 for liquidated damages against the sum awarded to the Claimant in the first adjudication because the adjudicator’s decision was merely declaratory and did not make any award or order for payment of liquidated damages. The right to set off does not arise as the entitlement to liquidated damages does not follow logically from the adjudicator’s decision, and enforcement is limited to the sums expressly awarded by the adjudicator.

Court Disposition

Judgment for the Claimant; Defendants' set-off claim for liquidated damages dismissed

Orders

  • Defendants to pay the Claimant the sum of £70,895.86 as agreed, being the net sum after set-off of sums expressly awarded in the two adjudications
  • No set-off permitted for the claimed liquidated damages of £71,314.29