RJ Knapman Ltd v Richards

That part of the adjudicator's decision awarding the contractor a specified sum should be enforced notwithstanding the employer's contention that whilst the contractor had approbated that part of the decision, it had reprobated another part

Technology and Construction Court
His Honour Judge Peter Coulson QC
12 October 2006
The adjudicator awarded the contractor a specified sum on the basis that the employer should repay the liquidated damages deducted represented by the 13 weeks extension of time he granted to the contractor. The adjudicator also made declarations that: (1) the contractor was responsible for the supply of windows and doors which, as installed, were unsatisfactory and incomplete and (2) significant works remained outstanding with the result that practical completion had never been achieved. The employer refused to pay the sum awarded and the contractor brought court enforcement proceedings. The employer sought to invoke the doctrine of "approbation and reprobation" by contending that the contractor (1) had refused subsequent to the issue of the decision to accept and implement that part of the decision relating to the windows and doors and (2) was therefore wrongly seeking to take the benefit and to avoid the burden of the decision. Finally the employer contended that it followed logically from the decision that the employer was entitled to a particular sum by way of liquidated damages which could then be set off against the sum awarded by the adjudicator.
Judge Coulson rejected the employer's contentions and enforced that part of the decision awarding the contractor a specified sum by way of summary judgment in the contractor's favour on the basis that (1) arguments about the possible failure to comply with one part of a decision did not affect both parties' obligation to comply with all parts of the decision (including in the instant case the award of a money sum) and (2) the circumstances of the instant case were not such that the doctrine of approbation and reprobation principle was relevant or applicable. If, as the employer contended, the contractor was in breach of its contractual obligation to comply with the part of the decision dealing with the doors and windows, the employer had the immediate remedy provided by clause 9A.7.3 of the contract of taking legal proceedings to secure compliance pending any final determination. Also in circumstances where the contract provided the employer with a remedy to meet the very complaint it made, it was not appropriate to deprive the contractor of its entitlement (pursuant to that same adjudication decision) to sums by way of liquidated damages that the adjudicator found had been wrongfully deducted.