Birmingham City Council v Amey Birmingham Highways Ltd [2018] EWHC 2875 (QB) (02 November 2018)

Birmingham City Council v Amey Birmingham Highways Ltd [2018] EWHC 2875 (QB) (02 November 2018)

BCC was entitled to repayment of the £20,593,490.24 because the payments were made under protest and on the express condition of repayment if the appeal succeeded, and ABHL's retention of the monies without objection constituted acceptance of that condition. Under the contract, Milestone step-ups and Monthly Payments can only be adjusted from the date of actual certification, not retrospectively, as the contract provides no mechanism for backdating or notional certification.

Citation
[2018] EWHC 2875 (QB)
Parties
Claimant: Birmingham City Council; Defendant: Amey Birmingham Highways Limited
Jurisdiction
England and Wales
Judgment Date
02 November 2018
Procedural Posture
Summary Judgment Application in Technology and Construction Court (qbd) / Reserved Judgment on Issues 4 and 5 Following Partial Summary Judgment
Outcome
Judgment for the Claimant on both issues.
Legal Topics
Summary Judgment, Restitution of Payments, Interpretation of Payment Mechanisms in PFI Contracts, Effect of Setting Aside Certificates, Declaratory Relief
Contract Law Construction Law Public Procurement Summary Judgment Restitution of Payments Interpretation of Payment Mechanisms in PFI Contracts Effect of Setting Aside Certificates Declaratory Relief

Case Brief

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Parties

Birmingham City Council

Claimant

Amey Birmingham Highways Limited

Defendant

Procedural Posture

Summary Judgment Application in Technology and Construction Court (qbd) / Reserved Judgment on Issues 4 and 5 Following Partial Summary Judgment

Legal Issues

  1. 1 Whether BCC is entitled to repayment of £20,593,490.24 paid under protest and on condition of repayment if appeal succeeded
  2. 2 Whether ABHL is entitled to retrospective recalculation of Monthly Payments based on when Milestone criteria were achieved rather than when certified

Ratio Decidendi

BCC was entitled to repayment of the £20,593,490.24 because the payments were made under protest and on the express condition of repayment if the appeal succeeded, and ABHL's retention of the monies without objection constituted acceptance of that condition. Under the contract, Milestone step-ups and Monthly Payments can only be adjusted from the date of actual certification, not retrospectively, as the contract provides no mechanism for backdating or notional certification.

Court Disposition

Judgment for the Claimant on both issues.

Orders

  • ABHL to repay £20,593,490.24 to BCC plus interest.
  • Declaration that ABHL is only entitled to Monthly Payments based on valid Milestone Certificates, and Milestone Adjustment Factor increases only from the date of certification, not retrospectively.