Whiteways Contractors (Sussex) Limited -v- Impresa Castelli Construction UK Limited

The sub-contractor was entitled to summary judgement to enforce the adjudicator's decision in its favour notwithstanding the contractor's proposed abatement in respect of overpayments on earlier interim payments
The sub-contractor gave notice of a dispute in relation to outstanding payments on valuations and its final account, including prolongation costs, interest and financing charges and retention release. The sub-contractor went on to give its ?formal notice? of its intention to refer the dispute ?as set out below? ie failures to make payments against its final account and its interim payment applications. The adjudicator made a decision on the dispute requiring the contractor to make full payment to the sub-contractor. The contractor refused to pay and justified its refusal on the basis that it had a valid abatement in respect of the value of work carried out which was covered by previous payment applications paid by the contractor. The sub-contractor commenced court proceedings and applied for summary judgment to enforce the adjudicator's decision. Judge Bowsher held that the decision should be enforced notwithstanding the contractor's proposed abatement in respect of alleged overpayments on earlier interim payments. The scheme of the Construction Act 1996 was to provide, for the temporary purposes of the Act, that deductions by way of set-off or deduction were to be made in a manner which complied with the Act's requirements. In making that requirement the Act made no distinction between set-offs and abatements and there was no reason to endeavour to find some such fine distinction. Whilst in considering a dispute an adjudicator would make his own valuation of the claim and might abate it in respects not set out in any notice of intention to withhold payment, he should not investigate any proposed abatement unless it was set out in such a notice as a ground for deduction. Advice Note The contractor in this case endeavoured to oppose the enforcement of the decision in the sub-contractor's favour by contending that it had a valid abatement which should be taken account of notwithstanding that it had failed to serve a notice of intention to withhold payment under section 111 of the Construction Act. Judge Bowsher refused to accept this contention and held that there was no difference for the purposes of the Act between an abatement and a set-off, which would undoubtedly have required an effective such notice.