Thereby Hangs A Tale

摘要

In all the writing and talks devoted to the proposed amendments to the Construction Act, one important thing has been left out: whether an adjudicator's decision can be enforced as a debt, irrespective of counterclaims.rnWhen it passed the act, parliament envisaged that, where the adjudicator had decided that one party should pay another, the cash would actually be handed over. As the late Lord Ackner explained in the House of Lords at the time, adjudication came under the rubric "pay now, argue later".rnBut there is still considerable doubt about the extent to which a party can exercise a right of set-off after an adjudicator's decision. There is an assumption that the Court of Appeal put the matter beyond doubt in Ferson vs Levolux. There it was decided that contractual set-off rights should give way to the statutory requirement that adjudicators' decisions be paid in full. However, if the majority view in the House of Lords case of Melville Dundas vs Wimpey were to prevail, the opposite would be the case: contractual provisions would supersede the express statutory provisions. I can almost hear their Lordships saying that there must be clear words in the act directed at excluding equitable set-off rights in this context.