Walker Construction (UK) Ltd v Quayside Homes Ltd & Or

The appeal and cross-appeal in this case arise out of the judgment of His Honour Judge Edward Bailey given in the Central London County Court (Technology and Construction List) on 20 September 2012 ("the judgment"), whereby he awarded a net judgment sum of £10,885 to the defendant/respondent, Quayside Homes Limited ("Quayside"), in respect of its counterclaim, and his decision in a separate judgment of the same date (“the costs judgment”) to award Quayside the majority of its cost of the action. At the end of the hearing before him the judge gave Quayside permission to appeal against his decision not to award it the sum of £8,941.16 by way of counterclaim. The appellant, and claimant in the action, Walker Construction (UK) Limited ("Walker"), was given permission to appeal against the judge’s order for costs by Tomlinson LJ at an oral hearing in the Court of Appeal on 20 March 2013.

Because Quayside’s cross appeal concerns a question of liability and because its outcome is arguably capable of affecting the outcome of Walker’s costs appeal, it is logical to consider Quayside’s cross-appeal first.

The principal issue at the hearing before us, however, was whether the judge was right to make an order for costs which required Walker (subject to certain exceptions) to pay Quayside's costs, for the period from 16 December 2008 to 24 May 2011 assessed on the standard basis, and from 25 May 2011 assessed on the indemnity basis. We were informed that the costs of the proceedings below, so far as both sides were concerned, were substantial. The bill submitted by Quayside in respect of its costs for the period from 16 December 2008 to 24 May 2011 on the standard basis, and for the period from 25 May 2011 on the indemnity basis, claims a total of £345,758.73.

Because the appeal challenges the judge's order in relation to the costs of the action, it is necessary to set out the procedural chronology of both the action and the various offers for settlement in somewhat tortuous detail.

Walker is a civil engineering contractor, which carries out, amongst other things, drainage and highway works.

Quayside is a developer of residential homes. In July 2003, planning permission was granted to construct over 300 residential homes on land known as “Willowbank”, which previously formed part of the Sandwich Industrial Estate (“the site”).

On 3 November 2003 Walker successfully lodged a tender return with Quayside for drainage and highways works (“the works”) at the site. In December 2004 Walker signed two NEC contracts with Quayside whereby the former agreed to complete the works directly for, and be paid directly by, Quayside. There were separate contracts for what were described as the section 38 works (on-site works) and the section 278 works (off-site works). There appears to have been some dispute previously as to whether the contracts were subsequently consolidated in a contract dated 23 December 2004, but the precise contractual structure is of limited relevance for present purposes. I shall simply refer to the contract or contracts between the parties as "the Contract". It was common ground that the Contract was a contract for the purposes of the Housing Grants Construction and Regeneration Act 1996 ("the Act") and that, because the parties did not make their own contractual provisions for adjudication, the result of section 108 (5) of the Act was to incorporate the adjudication provisions of the Scheme for Construction Contracts (England and Wales) Regulations 1998 ("the Scheme"), which was promulgated under section 114 of the Act.

The Part 20 defendant in the action, Peter Brett Associates ("PBA”), was Quayside's consulting engineer and project manager. PBA is no longer a party to the action, as Quayside's claim against it was settled on the terms of an order dated 4 April 2012.

At the conclusion of the works, a dispute arose between Walker and Quayside in respect of the final payment sought by Walker. PBA had issued Walker with various site instructions to carry out certain drainage and other remedial works, and Quayside had withheld parts of the retention and other payments reflecting the costs that it considered were incurred in rectifying what it alleged were Walker's defective works.

Walker issued court proceedings on 19 February 2008 in the Ashford County Court claiming the sum of £23,572.36. This was made up as follows:

Quayside served a "holding" defence on 20 March 2008. That defence asserted, without providing any particulars, or quantifying any counterclaim, that Walker had failed to complete the works properly and that they were defective. The defence referred to the fact that, as at that date, "Contract Administrators" were dealing with Walker in relation to the defects alleged by Quayside. A stay of proceedings was agreed in the hope of settlement.

On 29 August 2008 Walker issued a notice of adjudication pursuant to the Scheme. By its notice, Walker claimed:

The adjudicator's decision was given on 2 December 2008. By his award the adjudicator rejected Quayside's claim that Walker was not entitled to be paid for the remedial works because the damage exhibited by the drainage was due to failings in the construction of the drainage by Walker. He also rejected Quayside's claim for set off and/or abatement in respect of damage allegedly suffered as a result of Walker's allegedly defective drainage works and awarded Walker the sum of £23,440.72 plus interest. The sum was made up as follows:

On 15 December 2008 Quayside paid Walker the sum of £23,440.72 plus interest pursuant to the adjudicator's award.

Walker’s claim for the section 278 works retention (£1,773.65) had been withdrawn from the adjudicator following concerns as to the adjudicator’s jurisdiction to determine that issue. Accordingly, after the publication of the adjudicator's award, the claim for £1,773.65 retention in respect of the section 278 works remained outstanding as a claim in the proceedings, which had been adjourned pending the adjudication.

On 29 January 2009 Walker's solicitors, CJ Hough & Co Ltd, made a Part 36 offer to Quayside's solicitors, Furley Page LLP, offering to discontinue Walker's claim (which, as I said, at that stage stood in an amount of £1,773.65) with no order as to costs. The letter stated as follows:

“As you are aware, following the decision of Mr Turner under the contract to which this claim relates our client has been paid its claimed entitlement in full, with the exception of retention of £1,773.65.

Apart from that retention, our client’s claim in the current proceedings has been satisfied. If the court was to agree with Mr Turner’s decision, in particular his view that defects were not caused by our client’s workmanship (see paragraph 29), then there can be no doubt that our client would be entitled to its costs in these proceedings.

However, in order to bring the dispute to an end and to avoid further costs being incurred by your client our client is willing to forego its entitlement to costs and the outstanding retention.

On 2 February 2009, Quayside's solicitors responded to the Part 36 offer stating that it was "not yet in possession of the relevant information required to properly assess [Walker's] offer", and requesting a stay whilst its investigations were completed. As a result, the case management conference, which had been scheduled for 6 February 2009, was adjourned to the first open date after 11 May 2009. Thereafter nothing appears to have happened until 17 September 2009, when Quayside's solicitors wrote to Walker's solicitors asserting that there were a number of defects in the work carried out by Walker and that, in carrying out the works, Walker had failed to exercise reasonable care and skill. Quayside required confirmation that Walker would return to the site and rectify the alleged defects and, in the event that Walker refused to do so, Quayside claimed damages.

On 20 October 2009 Walker’s solicitors responded to the defects claim and suggested a site meeting. On 23 November 2009 Quayside's solicitors responded to that letter, agreeing to a site meeting, but stating as follows:

“Our client's position on the Adjudicator's decision, as you are well aware, is that it is plainly wrong and was the result of precipitate action taken by your client thereby not allowing the parties sufficient time to fully particularise or evidence the full extent of the defects. Obviously this matter has now been addressed and we will furnish you with the relevant information requested shortly…. If however your client is not prepared to agree liability in respect of all defects, including those relating to drainage, we are instructed to pursue our client’s claim through the Courts.”

On 23 April 2010 Quayside's solicitors wrote to Walker's solicitors enquiring as to Walker's position in relation to certain of the defects. Quayside informed Walker that Quayside would be giving instructions to a third party to proceed with rectifying the defects on 4 May 2010 and that, accordingly, if Walker wished to inspect the defects, it should do so before that date.

On 13 October 2010, Quayside issued its third party claim form against PBA. On 15 October 2010 the County Court gave permission to Quayside to amend its defence and counterclaim in the form appended to its application notice dated 25 August 2010 and directed that such defence and counterclaim should be served no later than 15 December 2010.

On 15 December 2010 Quayside served its amended defence and counterclaim, which replaced its original defence dated 20 March 2008 in its entirety. The amended defence denied that Quayside owed Walker the sums claimed in the latter's particulars of claim and gave full particulars of Quayside's defects claim, and also claimed damages for delayed completion, "additional preliminaries" and ongoing costs together amounting (on my arithmetic) to £151,735.97. In addition, in paragraph 12 of the amended defence, Quayside claimed that, of the sum of £23,440.72 plus interest paid by Quayside pursuant to the adjudication, the sum of £8941.16 (claimed by Walker under application number of the 28061 in respect of repair work to defects in some drains allegedly caused as a result of Quayside's piling operations) was not properly due to Walker and should not have been awarded by the adjudicator. Quayside denied "that the defects [in the drains] were caused by [its own] piling work and averred that [Walker] should have rectified the defects at no cost pursuant to its obligations under the Contract". It claimed that Walker had repeatedly been invited to return to site to rectify the alleged defects but had consistently refused. Accordingly, in its defence, Quayside claimed repayment of the sum of £8941.16. Quayside also claimed that it should be entitled to abate, or set off against, Walker's claim, certain additional sums which Quayside had paid pursuant to the award, namely interest of £2639.51 and £5822.16 in respect of the adjudicator's fees. In total Quayside counterclaimed the sum of £169,138.80. Although the counterclaim, according to its wording, appeared to be limited to Quayside's claim for damages in respect of its claim for defects, delay and additional preliminaries, the figure actually counterclaimed, namely £169,138.80, suggests that such sum included Quayside's claim for repayment of the sum of £8941.16.

On 24 December 2010 Quayside, in a letter from its solicitors to Walker’s solicitors, made a Part 36 offer to settle Walker's claim and its counterclaim, on terms that Walker paid Quayside the sum of £55,000 within 14 days of accepting the offer plus Quayside's costs of the action up until the date of Walker's acceptance of the offer.

That offer was not accepted by Walker. Instead, on 5 January 2011, Walker's solicitors made a non-Part 36 offer to pay £30,000 to Quayside in full and final settlement of its claim inclusive of costs. The letter was in the following terms:

“For commercial reasons our client has instructed us that it offers the sum of £30,000 plus VAT in full and final settlement of our client’s claims and your client’s counterclaims in these proceedings.

This is not a formal Part 36 offer to pay a sum plus costs because there were various offers made by our client to rectify defects that must be taken into account in deciding any liability of our client for costs as must your client’s unreasonable conduct in relation to investigation and rectification of defects and claims for work that has not been done or was unnecessary.

These are not matters for a Costs Judge because they relate to primary liability for costs rather than to detailed assessment and can only properly be taken into account by the trial judge who hears the case and understands the issues.

It is our client’s position that this matter should have been resolved by your client’s acceptance of one of our client’s offers and that when your client’s conduct is taken into account any primary liability of our client for costs will be reduced significantly.

On this basis our client assesses its total liability, including costs and interest, as substantially less than the amount it is prepared to offer to dispose of these proceedings.

In your letter of 24 December 2010 you referred to our client’s recent survey. This shows that the manholes have “sunk” substantially since the last survey, a fact that your client may wish to take into account in considering this offer.

This offer will remain open for acceptance for 14 days from the date of this letter.”

By letter from its solicitors dated 7 January 2011, Quayside rejected Walker's offer, stating that it did "not even come close to covering [Quayside's] costs let alone the sums claimed." On 9 February 2011 Walker served its Reply to the Amended Defence and Counterclaim. Walker denied that it had been in breach and relied on correspondence demonstrating that it had been willing to attend the site with a view to agreeing a defects list with Quayside, subject to independent verification. It was said, that this was at a time when there was no project manager, because Quayside was in dispute with PBA. At paragraph 22, Walker pleaded:

“22.

As to Paragraph 12 [of the Amended Defence (above)], the Claimant maintains its entitlement to payment. Insofar as the defects were not caused by the Defendant’s piling operations they were caused by matters that were the responsibility of the Defendant as detailed above.”

On 25 February 2011, at a case management conference, Quayside informed Walker in a written note that it would be withdrawing certain parts of its counterclaim, including certain claims for defective workmanship, the delayed completion claim and the claim for repayment of the adjudicator's fees. That was said to reduce Quayside's counterclaim to £86,839.24 before interest.

On 8 March 2011 Quayside made a non-Part 36 offer inviting Walker to pay £40,000 inclusive of costs in settlement of Quayside's claim. Quayside's solicitors' letter of that date set out the costs incurred by Quayside (not including the costs of the third-party claim or those arising out of the adjudication) as totalling £52,415.85. On 9 March 2011 Walker made a Part 36 offer inviting Quayside to pay Walker £100 plus costs in full settlement of the claim. On 14 March 2011 Quayside made a further Part 36 Offer inviting Walker to pay £15,000 plus costs in full settlement of Quayside's claim. On 3 May 2011 Quayside made a further Part 36 offer inviting Walker to pay £100 plus costs in settlement of Quayside's claim. On 10 May 2011 Quayside's solicitors informed Walker's solicitors that Quayside's costs as at that date were approximately £55,000.

On 11 May 2011 Walker made a non-Part 36 offer that it would pay £100 to Quayside and that each side would bear their own costs. On 7 July 2011 Quayside made a non-Part 36 offer that to Walker and PBA that they jointly should pay £120,000 inclusive of Quayside's costs.

On 21 July 2011 the third-party made an offer to Quayside to settle the latter's Part 20 claim as against the third-party. On 22 July the Central London County Court gave directions to take the matter through to trial. In August 2011 further requests for particulars of the respective pleadings were served.

On 2 September 2011 Quayside served its Re-Amended Defence and Counterclaim, and, as foreshadowed in its written note previously produced on 25 February 2011, reduced its pleaded counter-claim from £169,138.80 to £87.404.22. This reflected a reduction in the defects claim and the withdrawal of the claim for delay and additional preliminaries. In addition Quayside deleted the reference to the interest of £2,639.51 and a further sum of £5822.16 in respect of the adjudicator's fees, as amounts which Quayside had previously sought to abate or set off against Walker's claim. However an additional overpayment claim for £4570.98 was added. Again, although the counterclaim on its face only appears to refer to the claim for damages, the arithmetic demonstrates that the total figure of £87.404.22 counterclaimed included the claims for repayment of the £8941.16 and the £4570.98. The case then proceeded towards trial, with directions for disclosure and exchange of witness statements.

On 17 February 2012 Quayside's solicitors indicated to Walker's solicitors that Quayside was still amenable to settlement if Walker were to make an offer and that Quayside's Parts 36 offer remained open for acceptance. On 2 March 2012 Walker's solicitors replied, reiterating that in their view Quayside's claim faced serious difficulties and that Walker's previous offers were more than adequate to cover its possible liability. The letter ended with the following non-Part 36 offer being made by Walker for it to pay £10,000 inclusive of costs to settle the action:

“Because your client has refused to accept previous offers our client has subsequently incurred substantial legal costs. It is not therefore prepared to repeat those offers. However, on a purely commercial basis and to dispose of this matter our client is prepared to make a final offer to pay £10,000 in full and final settlement of the claims and counterclaims in these proceedings including interest and costs. Payment would be within 21 days from acceptance.

This offer will remain open for acceptance for 7 days from the date of this letter after which it will lapse.”

On 8 March 2012 Quayside's solicitors repeated its invitation to Walker to accept Quayside's previous Part 36 offer (namely the offer dated 3 May 2011 whereby Quayside proposed that Walker should pay £100 plus Quayside's costs), with the additional term that Walker would be entitled to pay by instalments over a six-month period. In the alternative, Quayside's solicitors put forward a non-Part 36 offer for Walker to pay £50,000 over six months inclusive of costs. In a letter dated 12 April 2012 Quayside's solicitors informed Walker's solicitors of Quayside's settlement with the third-party and of the fact that £28,000 was paid to Quayside towards costs, in respect of which credit in respect of any generic element might have to be given to Walker, if it were to pay Quayside's costs.

On 8 June 2012 Quayside served a Re-Re-Amended Defence and Counterclaim, in which the sum counter-claimed reduced yet further to £84,168.22 plus interest. Again there was no apparent claim in the main body of the counterclaim for payment of the two sums of £8941.16 and £4570.98 referred to in the defence as entitling Quayside to set off or abatement, although once again the arithmetic suggests that the total figure of £84,168.22 counterclaimed included the claims for repayment of the £8941.16 and the £4570.98.

The trial took place on the 10-13 September 2012. The issues in contention at trial were:

In the event, the judge awarded a net judgment sum of £10,035.91 to Quayside and dismissed its claim for repayment of the sum of £8941.16, which it had paid to Walker pursuant to the award. As part of his submissions, Lord Marks, leading counsel appearing on behalf of Walker, produced a helpful table setting out a summary of the figures claimed by Quayside and Walker, and the amounts awarded by the judge. I reproduce the table, as slightly amended by me, below:

SCHEDULE - JUDGMENT FIGURES in respect of Quayside’s Counterclaim

Section 108(3) of the Act provides:

“108 Right to refer disputes to adjudication.

(1)

A party to a construction contract has the right to refer a dispute arising under the contract for adjudication under a procedure complying with this section.

For this purpose “dispute” includes any difference.

(2)

The contract shall—

(a)

enable a party to give notice at any time of his intention to refer a dispute to adjudication;

(b)

provide a timetable with the object of securing the appointment of the adjudicator and referral of the dispute to him within 7 days of such notice;

(c)

require the adjudicator to reach a decision within 28 days of referral or such longer period as is agreed by the parties after the dispute has been referred;

(d)

allow the adjudicator to extend the period of 28 days by up to 14 days, with the consent of the party by whom the dispute was referred;

(e)

impose a duty on the adjudicator to act impartially; and

(f)

enable the adjudicator to take the initiative in ascertaining the facts and the law.

(3)

The contract shall provide that the decision of the adjudicator is binding until the dispute is finally determined by legal proceedings, by arbitration (if the contract provides for arbitration or the parties otherwise agree to arbitration) or by agreement.

The parties may agree to accept the decision of the adjudicator as finally determining the dispute.

(4)

The contract shall also provide that the adjudicator is not liable for anything done or omitted in the discharge or purported discharge of his functions as adjudicator unless the act or omission is in bad faith, and that any employee or agent of the adjudicator is similarly protected from liability.

(5)

If the contract does not comply with the requirements of subsections (1) to (4), the adjudication provisions of the Scheme for Construction Contracts apply.

(6)

For England and Wales, the Scheme may apply the provisions of the Arbitration Act 1996 with such adaptations and modifications as appear to the Minister making the scheme to be appropriate. …”

The relevant provisions of the Scheme provided:

“Notice of Intention to seek Adjudication

1.

(1)  Any party to a construction contract (the “referring party”) may give written notice (the “notice of adjudication”) of his intention to refer any dispute arising under the contract, to adjudication.

(2)

The notice of adjudication shall be given to every other party to the contract.

(3)

The notice of adjudication shall set out briefly—

(a)

the nature and a brief description of the dispute and of the parties involved,

(b)

details of where and when the dispute has arisen,

(c)

the nature of the redress which is sought, and

(d)

the names and addresses of the parties to the contract (including, where appropriate, the addresses which the parties have specified for the giving of notices). …

Powers of the adjudicator

13.

The adjudicator may take the initiative in ascertaining the facts and the law necessary to determine the dispute, and shall decide on the procedure to be followed in the adjudication. ….

Adjudicator’s decision

20.

The adjudicator shall decide the matters in dispute. He may take into account any other matters which the parties to the dispute agree should be within the scope of the adjudication or which are matters under the contract which he considers are necessarily connected with the dispute. In particular, he may—

(a)

open up, revise and review any decision taken or any certificate given by any person referred to in the contract unless the contract states that the decision or certificate is final and conclusive,

(b)

decide that any of the parties to the dispute is liable to make a payment under the contract (whether in sterling or some other currency) and, subject to section 111(4) of the Act, when that payment is due and the final date for payment,

(c)

having regard to any term of the contract relating to the payment of interest decide the circumstances in which, and the rates at which, and the periods for which simple or compound rates of interest shall be paid.

21.

In the absence of any directions by the adjudicator relating to the time for performance of his decision, the parties shall be required to comply with any decision of the adjudicator immediately on delivery of the decision to the parties in accordance with this paragraph.

22.

If requested by one of the parties to the dispute, the adjudicator shall provide reasons for his decision.

Effects of the decision

23.

(1)  In his decision, the adjudicator may, if he thinks fit, order any of the parties to comply peremptorily with his decision or any part of it.

(2)

The decision of the adjudicator shall be binding on the parties, and they shall comply with it until the dispute is finally determined by legal proceedings, by arbitration (if the contract provides for arbitration or the parties otherwise agree to arbitration) or by agreement between the parties.”

As I have already said, the judge dismissed Quayside's claim for the repayment of the sum of £8941.16, but gave Quayside permission to appeal against his decision.

The judge accepted that he was in no way bound by the adjudicator's decision. He referred to the issue as a technical one:

“110.

In the course of the adjudication, the adjudicator awarded the balance claimed by Walker on the invoice application 28061, dated 11 May 2007, at £13,298.36, which sum included £8,941.16, which was not certified by PBA’s project manager. Quayside paid the award in full; it now claims the return of this sum.

111.

Quayside submits the adjudicator’s decision has no status or value whatsoever in subsequent legal proceedings. The determination, the reasons and the evaluation of parties’ case in adjudication are to be ignored by the court. The slate is wiped clean. The burden of proof lies where the law placed it. The adjudicator’s decision does not affect this burden. In other words, submits Quayside, the court, when considering claims which have been the subject of an adjudication must turn the clock back to the position prior to the adjudication.

112.

The argument now becomes entirely technical. In paragraphs 10-12 of the re-re-amended Defence and Counterclaim, Quayside plead,

“10.

By an adjudicator’s decision, dated 2 December 2008, the Defendant was directed to pay the Claimant £23,440.72. Such a decision was to be of temporarily binding effect, pending the final determination of the dispute between the parties in the court or arbitration. This sum was duly paid on 15 December 2008.

11.

This leaves the sum of £131.64 outstanding on the Claim which the Defendant denies.

12.

Further, of the sum claimed by the Claimant and paid by the Defendant pursuant to the adjudicator’s decision, £8,941.16 was not properly due. This sum was not certified by the contract administrator, Peter Brett Associates. This sum, claimed under application 28061 was in respect of repair work to defects in the drains in the LAP, said by the Claimant to have been caused by the Defendant’s piling operation. It is denied that the defects were caused by the Defendant’s piling work, and averred that the Claimant should have rectified these defects at no cost, pursuant to its obligations under the contract. It is therefore denied that the Claimant was entitled to the sum of £8,941.16, or any part of it, and the Defendant is entitled to, and claims repayment of the said sum.”

Quayside points out that Walker gives no evidence to support of its claim for the £8,941.16. Accordingly, says Quayside, it must succeed in this claim.

113.

I quite see that I am in no way bound by the adjudicator’s decision; that is clear from the provisions of Section 108(3) of the Housing Grants Construction Regeneration Act 1996, and the decision in City Inn Limited v Shepherd Construction Limited (2002) SLT 781. There is a helpful passage in this regard in Coulson on Construction Adjudication, second edition, 2010, paragraphs 14-47 and following. Once the question that the contractor is entitled to monies paid under adjudicator’s award is validly raised in subsequent legal proceedings, the contractor must prove his entitlement in the usual way. He may not rely on the award as proof. The question does have to be raised in legal proceedings.

114.

The difficulty I face is this: What is Quayside’s cause of action? In what I may describe as the ordinary case, there is a dispute on the final account at the conclusion of the works. The parties join battle, and the matters dealt with in an adjudication along the way tend to become lost in the wash. But here there is no dispute on the final account; Walker sues only for retention monies on the Section 278 Works. They have their interim invoice monies. Quayside wish the court to award judgment to them in respect of interim invoice monies which were not certified by PBA, and which they say were wrongly awarded to Walker in the adjudication. To do so, Quayside needs a cause of action. What is it?”.

He then went on to decide (in paragraph 115 of the judgment) that that there was an implied term in any construction contract to which the Housing Grants Construction Regeneration Act 1996 ("the 1996 Act") applied, that the contractor would repay to the employer any money paid by the employer under the terms of an adjudicator's award in respect of which the liability to pay was not substantiated in subsequent legal proceedings. But he held that, although Quayside had a cause of action in contract, its pleading had failed to identify the breach of contract, or even assert that there was a breach of contract.

The judge then went on to consider whether there was a basis for Quayside's recovery in restitution. Although his reasoning is somewhat hard to follow, he appears to have concluded that Quayside had sufficiently pleaded a restitutionary claim (see paragraphs 117 to 118 of the judgment), but that no such claim for restitution could exist as a matter of law. In so doing he cited, but disagreed with, the obiter decision of His Honour Judge Stephen Davis in Jim Ennis Construction Limited v Premier Asphalt Limited [2009] EWHC 1906 (TCC) and appears to have drawn a distinction between decisions of courts and decisions of adjudicators. At paragraphs 122 to 126 of his judgment he concluded:

“122.

If, as I would respectfully agree, the proper analysis of the rule as it applies in policy consideration arising from the court’s power to force litigants to transfer benefits to other litigants with the right of appeal having, as a necessary concomitant, the right to recover payments under a judgment set aside, so as to prevent the appeal process being rendered nugatory as an idle exercise, then the reasoning that there is a restitutionary claim in Jim Ennis falls away.

123.

The adjudicator’s decision is a temporarily binding decision. Temporary, in the words of Section 108(3), ‘until the dispute is finally determined by legal proceedings’. The decision is not appealed against, or set aside in the manner which applies in the context of civil proceedings. The court does not rule that the temporary decision should not have been made, and so its consequences require a reversal in the same way a Court of Appeal may rule on a circuit judge’s decision. Or in the same way, that having an appeal on a point of law, a court may set aside an arbitrator’s decision. An appeal to the Court of Appeal from a trial judge who has determined the relevant matters in a different way to that of the adjudicator is not a second appeal. There is no policy imperative to correct the effect of the adjudicator’s decision, always known by the parties to be of a purely temporary binding nature until there is litigation.

124.

If this principle does apply, as I consider to be the case, Quayside is, in my judgment, hard-put to find some alternative principle on which to place a restitutionary remedy. There is no single simple principle in English law that any person who has been unjustly enriched at the expense of another may be required to make an appropriate restitution to that other, much as the original authors of Goff & Jones may have wished. The money paid to Quayside was not paid by mistake, neither was it paid without consideration. It was paid under the terms of a statutory scheme designed to ensure, as far as possible, that parties to lengthy construction contracts could have a swift mechanism to determine disputes that might otherwise interfere with the continued smooth operation of the contract, but on a temporary basis only.

125.

Mr Townend, conscious perhaps that his approach, namely ‘Walker have no evidence so I must win’, might be viewed by the court with less than fervent favour, did address me on a number of points to indicate that Walker really did not deserve this money. He may be right. The facts of the dispute were not aired before me. Mr Webb’s submission that in the light of the adjudicator’s decision there was some initial evidential threshold that Quayside had to cross before the court could apply the use of burden of proof and find against the contractor because he had no evidence was, it would seem, part of a high risk strategy, and incidentally incorrect.

126.

It is not for me to speculate as to why Walker did not adduce the evidence necessary to support its case on the work for which they obtained an adjudicator’s decision, nor indeed why Quayside did not do more than prepare to meet a case that payment was due beyond proof that PBA did not certify it, although Quayside’s approach is the more understandable. Both sides arrived at trial to argue this claim on a purely technical basis. At the end of the day this court may only award money judgments to litigants who establish that they have a good cause of action for the money, and demonstrate that the cause of action in question has been pleaded within the rules. In this respect Quayside fails. In the circumstances, I will not order repayment of the sums awarded in adjudication”.

Mr Simon Browne QC and Mr Tim Sharpe submitted that the judge had been wrong to reject Quayside's claim for £8941.16. In summary they contended that the judge should have found for Quayside on this issue and should have entered judgment for Quayside in the sum of £18,977.07 together with interest on the basis that:

In support of this contention they submitted as follows:

Lord Marks QC and Mr Hirst contended that the judge’s conclusion in relation to this issue should be upheld. In support of this contention, they submitted, in summary, as follows:

I accept Lord Marks’ submission that, because Quayside's claim was effectively a claim (or counterclaim) to set off damages in respect of allegedly defective works, the burden of proof at trial was on Quayside. At trial Walker was not seeking to recover any sum in respect of these works, as it had already been paid pursuant to the adjudication. Quayside never called any evidence at trial in support of its contention that Walker's original drainage works had been in breach of contract as defective. Accordingly, irrespective of any pleading point, the judge had no basis, on the material before him, on which he could reach a final determination in relation to Quayside's claim for damages for breach of contract. The adjudicator’s award was therefore bound to stand. Accordingly the judge was correct (although not for the reasons he gave) to reach the conclusion that he would not order repayment of the £8,941.16 or any part thereof.

Speaking for myself, I have to confess to some difficulty with the concept of the "temporary finality" of an adjudicator's decision pursuant to section 108(3) of the Act and paragraph 23 (2) of the Scheme and as to what, precisely, are the consequences of the provision in the latter that an adjudicator's decision is

"binding on the parties, and they shall comply with it until the dispute is finally determined by legal proceedings or arbitration".

As Buxton LJ said in Bouygues (UK) Ltd [2000] EWCA Civ 507 at [2], one can readily see that:

“The purpose of this procedure is to enable a quick and interim, but enforceable, award to be made in advance of the final resolution of what are likely to be complex and expensive disputes”.

To similar effect in relation to the commercial purpose of the provisions, is the statement by Chadwick LJ in the same case, at [26]:

“The purpose of those provisions is not in doubt. They are to provide a speedy method by which disputes under construction contracts can be resolved on a provisional basis. The adjudicator's decision, although not finally determinative, may give rise to an immediate payment obligation. That obligation can be enforced by the courts. But the adjudicator's determination is capable of being reopened in subsequent proceedings. It may be looked upon as a method of providing a summary procedure for the enforcement of payment provisionally due under a construction contract.”

Other cases similarly emphasise that the purpose of the statutory adjudication mechanism is to prevent the holding up of cash flow in the construction industry and to prevent payment being delayed by lengthy disputes: see for example Macob Civil Engineering Ltd v Morrison Construction Ltd [1999] BLR 93 and Stiell Ltd v Riema Control Systems Ltd [2000] Scot CS 174 (23 June 2000).

But the more difficult question arises in relation to the status of the adjudicator's decision after it has been complied with and payment has been made pursuant to the award, in accordance with the losing party's obligations under the Scheme, but prior to the final determination of the relevant dispute in court or arbitration proceedings. In other words, how "binding" is the adjudicator's decision, or how significant is the fact that payment has been made under the award, when the court comes to consider the outstanding disputes between the parties, and their respective obligations, as at the date of trial but before the court "finally" determines the dispute?

The issue was considered by Lord MacFadyen in City Inn Limited v Shepherd Construction Limited supra. The pursuers and defenders to the action were respectively the employer and contractor under a building contract. The dispute between the parties concerned whether, as the pursuers/employers maintained, the completion date specified in the contract remained the relevant completion date, or whether as the defenders/contractors maintained, they were entitled to various extensions of time as certified by the architect, and subsequently awarded by the adjudicator to whom the dispute was initially referred, prior to the start of the action. Lord MacFadyen said:

“[55] The dispute was referred to adjudication, and the adjudicator held that, in addition to the extension of time awarded by the architect, the defenders were entitled to a further extension of time of five weeks. The issue which has arisen, and which was briefly debated, is whether the adjudicator's decision to award an extension of time has any effect on the onus of proof in this action.

[56] Mr Keen submitted that the adjudicator's decision on extension of time had no effect on the burden of proof in the action. It remained for the defenders to justify the extension of time which they sought. He referred to the marginal note which appears beside clause 41A.8.1 in the Scottish Building Contract With Quantities (April 1998 Revision) which was incorporated into the parties' contract. That note is in the following terms:

"The arbitration or court proceedings are not an appeal against the decision of the Adjudicator but are a consideration of the dispute or difference as if no decision had been made by the Adjudicator."

Mr Keen submitted that the note correctly stated the law.

[57] Mr Cormack, on the other hand, submitted that the effect of the adjudicator's decision was to throw onto the pursuers the burden of showing that the extension of time which the adjudicator awarded was not justified. That, he submitted, was the effect of clause 41A.8.1, which implemented section 108(3) of the Housing Grants, Construction and Regeneration Act 1996. The binding quality of the adjudicator's decision continued, not merely until the dispute was made the subject of litigation, but until the court proceedings were finally determined. That must mean that, during the proceedings, the adjudicator's decision remained binding, and had to be rebutted by the party arguing for a different result.

[58] In my opinion, Mr Keen's submission is correct. As has been observed in a number of cases, the function of adjudication, as contemplated in the 1996 Act, is to provide a speedy means of reaching a binding interim determination of disputes arising under construction contracts. It goes no further than that. I agree with Mr Keen that the side note to clause 41A.8.1 correctly states the law. It is, in my view, no part of the function of an adjudicator's decision to reverse the onus of proof in any arbitration or litigation to which the parties require to resort to obtain a final determination of the dispute between them. It is reading too much into the reference in clause 41A.8.1 (and section 108(3)) to the adjudicator's decision being binding "until the dispute or difference is finally determined" to construe it as affecting the burden of proof in the arbitration or court proceedings. The burden of proof in any such action lies where the law places it, and is unaffected by the terms of the adjudicator's decision.”

That approach appears to have been adopted in Coulson on Construction Adjudication, 2^nd Edition, at paragraphs 14.47-14.50, where the author (Sir Peter Coulson) states:

“14.47

A potentially difficult question concerns the status of the adjudicator’s decision in any subsequent litigation or arbitration. Let us take, by way of an example, a claim advanced by a contractor in adjudication that he was entitled to a 20-week extension of time, and assume that this claim was advanced to the satisfaction of the adjudicator, who decided that 20 weeks was a reasonable entitlement, even though there was an absence of detail that, in arbitration or litigation, might have proved fatal to the whole claim. The employer then says that he wishes to challenge the adjudicator’s decision, and there is subsequent litigation between the parties. Is the contractor entitled to rely in his pleaded defence upon the adjudicator’s decision in support of his claim for an extension of time of 20 weeks, contending that it was for the employer to demonstrate that the adjudicator was wrong in reaching this decision?

14.48

It seems that the unequivocal answer to this question is no. Once the decision has been formally challenged by the issue of subsequent litigation or arbitration, the contractor in the example noted above is not entitled to rely on the existing decision as having any status whatsoever, let alone one that changes or displaces the ordinary burden of proof. In City Inn Ltd v Shepherd Construction Ltd, (Footnote: ¹) Lord MacFadyen stated that it was no part of the function of an adjudicator’s decision to reverse the onus of proof in any arbitration or litigation to which the parties might resort to obtain a final determination of the dispute between them. He said that the burden of proof lay where the law placed it and it was unaffected by the terms of the adjudicator’s decision. Thus, in the example previously noted, it would be for the contractor properly to plead and prove his entitlement to the 20-week extension of time.

14.49

The decision in City Inn was followed in another Scottish case, Citex Professional Services Ltd v Kenmore Developments Ltd. (Footnote: ²) There, the judge agreed with the reasoning of Lord MacFadyen in City Inn. However, in that case, the dispute was principally concerned with the correct interpretation of the contract, and the judge observed that, as a matter of practicality, he could not conceive that questions as to the burden of proof would play any significant part in the court’s determination of the issue in any event. That is rather different to the situation in City Inn, and in the example postulated above, where the potential difficulties that can arise out of the onus of proof in delay cases are such that a contractor might welcome the opportunity of reversing the normal burden of proof.

14.50

A rather unusual case on this topic, again from Scotland, is Stiell Ltd v Riema Control Systems Ltd. (Footnote: ³) There an adjudicator awarded the claiming party less than half the sum sought and that sum was duly paid by the defenders. The pursuers were unhappy with the adjudicator’s decision. Sums in the hands of a third party were arrested under a warrant for arrestment (Footnote: ⁴) and the defenders, having paid the sum ordered by the adjudicator, moved that the arrestment should be recalled. However, this was refused by the court on the ground that the action by the pursuer for the remaining part of the sum allegedly due (namely that part not ordered by the adjudicator) was one that involved no conditional contingency, because the sums claimed were outstanding, and thus the debt existed. The court held that the fact that the issue in the action may, in certain circumstances, have to be determined first by an adjudicator not mean that there was any change in the issue to be determined in the proceedings, and the determination by the adjudicator did not make claims, which were pure, become contingent.

It is respectfully suggested that this case turns on the particular operation of Scots law, and that in England and Wales a different result would have occurred: because the adjudicator had found that the claimant was not entitled to part of the sum claimed, the claimant would not have been able to conduct itself on the basis that that part of the sum was indeed due. If the claimant purported to do so, the defendant would have been entitled to a declaration to that effect, or to obtain summary judgment on its defence. (Footnote: ⁵)”

I comment that the suggestion made in the last paragraph of 14.50, by reference to the Scottish decision of Stiell Ltd v Riema Control Systems Ltd however, appears to support the proposition that, until the court has finally determined the case, the parties are bound to proceed on the basis that the award is correct and binding.

It is clear (and indeed was common ground on the appeal) that the court in subsequent litigation is not bound by the decision of the adjudicator and may come to a completely different conclusion on the relevant issues. It was also common ground that the adjudicator’s decision did not give rise to res judicata. But I have real difficulty with Lord MacFadyen's analysis that the adjudication has no effect whatsoever on the onus of proof in subsequent proceedings. In litigation following an award, the unsuccessful party in the adjudication, who has paid under the award, is claiming repayment of sums, which it contends it has wrongly paid. Necessarily, the defendant, the successful party in the adjudication, who has been paid, has no need whatsoever to bring court proceedings to claim payment, or even to seek a declaration that it was entitled to have been paid. Moreover section 108(3) provides that, until the final determination by the court, the decision of the adjudicator is binding. In those circumstances, why should the defendant contractor, for example, on the facts of City Inn Limited v Shepherd Construction Limited not be entitled to contend that, until the contrary was proved to the court's satisfaction, the adjudicator's decision that the contractor was entitled to an extension of time remained binding, and that therefore the onus of proof was on the claimant employer (the losing party in the adjudication) to adduce evidence, and prove on that evidence, that no such extension was justified and it was entitled to its money back? Why should the court have to proceed on the incorrect hypothesis that the court action was one being brought by the defendant contractor claiming an extension of time? We were not referred in the course of the hearing to any academic or industry commentary on City Inn Limited v Shepherd Construction Limited, and, no doubt because of the small size of the sum involved, we did not have the benefit of detailed argument on the issue generally. In those circumstances I would be reluctant to decide that City Inn Limited v Shepherd Construction Limited was wrongly decided unless it were necessary to do so.

Fortunately, in my judgment there is no need to do so in the present case. That is because, in the context of this action, it was, on any basis, incumbent on Quayside to establish the set off and counterclaim it was asserting in response to Walker's claim in the action for the payment of £1773.65 in respect of a retention in respect of the section 278 works (which had nothing to do with the drainage works). Quayside could not merely turn up, and say in response to Walker's claim:

“The adjudicator was wrong in relation to Walker's claim for payment in respect of the section 38 works. He was wrong to conclude that the evidence did not establish that the remedial drainage works were not necessitated by Walker's original defective construction works. He wrongly ordered Quayside to pay. The adjudicator's decision is only interim. Therefore Quayside is automatically entitled to repayment from Walker, without more, unless Walker establishes its entitlement to payment under the Contract. To do so Walker has to adduce evidence and establish that it was entitled to payment under the Contract because the damage to the drainage works was not caused by its originally defective drainage construction.”

In my judgment both the evidential burden and the burden of proof in establishing Quayside's set off and counterclaim, at all times rested fairly and squarely on Quayside. It was for Quayside to plead and adduce evidence that the original construction by Walker of the drainage works had been defective, to support its claim as per paragraph 12 of its defence for abatement and/or set off against Walker’s claim. Likewise, in so far as Quayside was asserting a counterclaim for damages in the sum of £8491.60 in respect of Walker's allegedly defective drainage construction works, or repayment of a sum which it contended had been wrongly awarded by the adjudicator, it was similarly incumbent upon Quayside to adduce evidence, and prove on that evidence, that Walker's original drainage construction works had been defective and caused damage. The action was not a claim for payment by Walker in respect of the section 38 works; there was no dispute that the remedial works had been done pursuant to the site instructions and no dispute as to the costs of the work. The mere absence of a certificate from PBA did not, as Lord Marks correctly submitted, prevent Walker from having a contractual entitlement to payment, which the adjudicator had duly awarded. Quayside was not entitled simply to point to the absence of a certificate to support its assertion that it was entitled to repayment because the adjudicator was wrong.

It was thus for Quayside to plead, adduce evidence in support of and prove its set off and counterclaim. It did not do so.

I deal first with the pleading point. In this context I reject Lord Marks’ technical submission that there was no pleaded counterclaim in respect of the sum of £8491.60. I do so because: first, arithmetically, the final figure claimed in the counterclaim appears to include that figure; and, second, because, in repeating the defence, the counterclaim can be assumed to have included the claim for repayment made in paragraph 12 of the defence. However more importantly, Quayside's pleading is, in my view, defective because there is no identification or particularisation in paragraph 12 of the "defects in the drains", or allegation that they amounted to a breach of contract, or as to why, under the terms of the Contract, it was Walker's obligation to rectify them at no cost, or as to the basis for Quayside's entitlement to repayment of the sum. However, as Mr Browne pointed out, it is fair to say that no request for further particularisation of the pleading was sought by Walker.

On its own, the absence of a satisfactory pleading of breach of contract probably would not have mattered if Quayside had called evidence at trial to support its claim that Walker’s original drainage construction works had been defective and in breach of the Contract; that consequently Walker had never been entitled to payment; that, accordingly, Quayside had suffered loss and was entitled to repayment or damages. No doubt the evidence, which had been before the adjudicator in relation to the cause of the defects present in the drains (i.e. whether they were caused by Walker's original construction works or by Quayside's piling works), could have been rehearsed once again before the judge. But, as was common ground, Quayside did not choose to adduce any of that evidence. It simply adopted the attitude that it was incumbent upon Walker to prove its contractual entitlement to payment of the sum of £8491.60.

In circumstances where Walker was not making any claim in respect of the sum of £8491.60, I cannot see that Walker had any obligation to do so. For that simple reason the judge was, in my view, entitled to conclude that Quayside had not established its entitlement to set off the sum of £8491.60, or to be paid that sum by way of damages for breach of contract, or to be repaid that sum on the basis that the adjudicator's decision was wrong.

In the court below there was considerable discussion, in the context of the adequacy of the pleadings, as to the nature, or characterisation, of the claim for repayment. In particular the debate focused on whether the claim was based on:

As I have already said, the judge decided (following the decision in Jim Ennis Construction Limited v Premier Asphalt Limited) that that there was such an implied term in the Contract, that Quayside indeed had such a cause of action in contract, but had failed to plead any allegation that there had been a breach of contract or identify any such breach. He also held (not following the decision in Jim Ennis Construction Limited v Premier Asphalt Limited) that there was no restitutionary claim as the payment had been made under the terms of the Scheme, and had not been paid by mistake or without consideration.

In Jim Ennis Construction Limited v Premier Asphalt Limited His Honour Judge Davies concluded:

In Aspect of Contracts (Asbestos) Ltd v Higgins Construction PLC, another limitation case, Akenhead J rejected the analysis of His Honour judge Davies in Jim Ennis Construction Limited v Premier Asphalt Limited. Akenhead J held that there was no implied term under the Scheme giving rise to a new right to the losing party in the adjudication to sue as from the date of payment for the recovery of sums paid. Similarly he held that there was no separate cause of action in restitution enabling the losing party in the adjudication to bring a restitutionary claim for payment within six years from the date of payment pursuant to the adjudication. He held that the relevant cause of action in court proceedings following an adjudication flowed from the underlying construction contract itself and was thus subject to the six year limitation period applicable to that contract. Depending on the circumstances, the claim in subsequent court proceedings by the unsuccessful party to the adjudication might be a claim for payment under the contract, a claim for a negative declaration that it had no contractual or tortious liability in damages to the other party or a claim for damages for breach of contract. All such claims were subject to the six year limitation period applicable to contract or tort claims.

No limitation issue arises in the present case. For present purposes the only possible relevance of the correct characterisation of a claim brought in subsequent court proceedings by the unsuccessful party to the adjudication would be in relation to the issues whether:

I prefer the analysis of Akenhead J in Aspect of Contracts (Asbestos) Ltd v Higgins Construction PLC to that of His Honour Judge Davies in Jim Ennis Construction Limited v Premier Asphalt Limited. I agree that, for limitation purposes, no new cause of action arises either as a result of an implied contractual term, or on the basis of a restitutionary claim, and that, when an unsuccessful party to the adjudication subsequently brings court proceedings, it is doing so on the basis of its original rights under the construction contract to claim payment under the contract, damages for breach of contract or a negative declaration that it is not in breach. However, neither analysis in my view actually assists the resolution of either of the issues identified above, although it could perhaps be said that the concept of a claim for a negative declaration (that the unsuccessful party to the adjudication was not in breach of contract) described in paragraph 44 of Akenhead J’s judgment, supports the analysis that it is for the unsuccessful party to the adjudication to prove his entitlement to repayment in subsequent proceedings.

As I have already said, in my judgment, the simple point here was that it was Quayside which was seeking to set off, arguably counterclaim and obtain payment in respect of the sum of £8491.60 in circumstances where Walker had obtained payment of that some pursuant to an adjudication award which remained contractually binding. In those circumstances, in accordance with basic principles, it was incumbent upon Quayside, as the party asserting its right to set off, repayment and/or damages, to plead and adduce evidence to prove its entitlement.

Accordingly I agree with the judge, although for somewhat different reasons, that, in circumstances where it chose not to adduce any evidence to support its claim, Quayside was not entitled to set off, or to repayment of, any part of the £8491.60. Accordingly, the judge was right to restrict the amount recoverable in respect of Quayside’s counterclaim to the sum of £10,885.

The judge’s order in relation to the cost of the action (“the costs order”) was in the following terms:

“1.

Judgment be entered for the Defendant in the sum of £10,035.91 together with interest in the agreed sum of £850.00.

Orders as to costs are as follows:

The significance of the date of 15 December 2008 was that that was the date of payment under the adjudicator’s award, before which there was little dispute that Walker had been entitled to its costs. 24 May 2011 was the date when the 21 day period allowed by Quayside’s Part 36 offer dated 3 May 2011 (namely that Walker should pay £100 plus Quayside’s costs) expired.

In the course of his judgment on costs, the judge considered a number of offers to settle and the consequences he attributed to them. In summary:

Lord Marks and Mr Hirst recognised that issues of costs were matters for the trial judge’s discretion and that appellate courts were generally reluctant to interfere with costs orders. Nevertheless, they submitted that the judge made serious errors of principle in making the costs order. In summary, they submitted:

Mr Browne and Mr Sharpe submitted that the judge’s costs order should be upheld for the reasons given by the judge and additionally for the reasons set out in Quayside’s notice. These were as follows:

I accept that, as was common ground, an appellate court should not lightly interfere with a trial judge’s exercise of discretion in relation to costs. As Davies LJ said in F&C Alternative Investments (Holdings) Limited & Ors v Barthelemy & Anor [2012] EWCA Civ 843 at [42]:

“Decisions on costs after a trial are pre-eminently matters of discretion and evaluation. Further, it is particularly important to bear in mind that a trial judge – especially after a trial such as this one – will have a knowledge of and feel for a case which an appellate court cannot begin to replicate. The ultimate test, of course, for the purposes of an appeal of this kind is whether the decision challenged is wrong. But it is well established that an appellate court may only interfere if the decision on costs is wrong in principle; or if it involves taking into account a matter which should not have been taken into account or failing to take into account a matter which should have been taken into account; or if it is plainly unsustainable.”

However I have reached the conclusion that the judge was plainly wrong in this case to make the costs order which he did and that his order is unsustainable. My reasons are as follows.

First, in my view, the judge, when considering the history of the matter and assessing the various offers, failed adequately to take into account the commercial reality of this litigation, how it was conducted on each side, its ultimate outcome, and who, on an objective basis, was the more successful party. These were matters to which he was obliged to give appropriate consideration under CPR Part 44.3(2), (4) and (5). By failing to take into account these relevant matters, and simply focusing on the various offers, the judge in my view adopted too mechanistic an approach, and failed to address the costs issues in their proper commercial context.

The relevant provisions of CPR Part 44.3 for present purposes are the following:

“44.3

- (1) The court has discretion as to -

(a)

Whether costs are payable by one party to another ;

(b)

The amount of those costs; and

(c)

When they are to be paid.

(2)

If the court decides to make an order about costs -

(a)

the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but

(b)

the court may make a different order”

(4)

In deciding what order (if any) to make about costs the court must have regard to all the circumstances, including -

(a)

the conduct of all the parties;

(b)

whether a party has succeeded on part of his case, or if he has not been wholly successful;

(c)

any payment into court or admissible offer to settle made by a party which is drawn to the court’s attention and which is not an offer to which costs consequences under Part 36 apply.

(5)

The conduct of the Parties includes -

(a)

conduct before, as well as during, the proceedings, and in particular the extent to which the parties followed the Practice Direction (Pre-Action Conduct) or any relevant pre-action protocol;

(b)

whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(c)

the manner in which a party has pursued or defended his case or a particular allegation or issue;

(d)

whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim”.

Walker’s claim had originally started out as a claim for approximately £25,000 – on any basis a small claim. Walker then recovered through the adjudication process the full sums claimed in respect of application 28061 and in respect of the section 38 retention (approximately £23,000). In the course of the adjudication process the adjudicator considered in detail the evidence relating to Quayside’s contention that the defects in the drainage work were attributable to Walker’s defective workmanship and rejected it. As both parties accepted, the judge was therefore correct to award Walker its costs of the action up until the date of Quayside’s payment of the adjudicator’s award.

From that date (December 2008) Walker’s claim in the court proceedings was a claim for the modest sum of £1,773.65 in respect of the section 278 retention (which the adjudicator had not considered on jurisdictional grounds and which Walker was ultimately awarded). It was not until two years later, in December 2010, that Quayside put forward its amended defence and counterclaim for £169,138.80, which included its claim to repayment of the £8941.16 awarded by the adjudicator, or which additionally claimed that sum. That claim was pursued until 25 February 2011, when Walker was notified that it was going to be reduced to £86,839.24, although the counter- claim was only formally amended on 2 September 2011 to £87,404.22 and subsequently, shortly before trial, to £84,168.22. At trial, as I have indicated, Quayside made a net recovery, after set offs, (including the £1,773.65) of only £10,035 plus interest of £850 and did not obtain repayment of the sum of £8941.16 which it had paid pursuant to the adjudication. Thus its recovery amounted to only 5.93% of its original claim of £169,138.80 and 11.92% of the claim of £84,168.22 as finally revised.

Against that commercial background, and the overall outcome, it seems to me to be impossible that a proportionate, or principled, result in costs terms could be that Walker should have been subjected to a liability to pay Quayside’s costs in an amount of £345,758.73 (subject to detailed assessment), in circumstances where Quayside had failed to establish all but a very small part of its counterclaim. As Lord Marks submitted, those costs were largely attributable to Quayside having contested the proceedings in a way that befitted a major piece of substantial litigation, when in reality only a minimal recovery was ever in prospect. On any basis, when one stands back and looks at the result, Quayside’s recovery of costs in an amount of £345,758.73 appears disproportionate. At best, and without taking into consideration the various offers, one might have thought that Quayside should only have been entitled to have recovered costs attributable to a counterclaim of £10,035.

As demonstrated in the first six paragraphs of the costs judgment, the judge seems to have been unaware that the huge costs incurred, which he referred to as "dwarf [ing]" the contractual payments and damages involved in the litigation, were largely, if not wholly, attributable to Quayside's counterclaim. These apparently included the costs of a five-day trial, two experts, counsel from specialist building chambers and a large quantity of documents.

Mr Browne submitted that success in litigation could "easily be determined by deciding who has to write the cheque at the end of the case”; see Day v Day [2006] EWCA Civ 415. He relied on the statement of Jackson J (as he then was) in Multiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd [2008] EWHC 2280 (TCC) at paragraph 72(i) that:

“(i)

In commercial litigation, where each party has claims and asserts that a balance is owing in its own favour, the party which ends up receiving payment should generally be characterised as the overall winner of the entire action.”

However the person who writes a cheque at the end of the day is not the only consideration that has to be taken into account, as Jackson J himself recognised when he went on to state the following seven additional principles:

“(ii)

In considering how to exercise its discretion the court should take as its starting point the general rule that the successful party is entitled to an order for costs.

(iii)

The judge must then consider what departures are required from that starting point, having regard to all the circumstances of the case.

(iv)

Where the circumstances of the case require an issue-based costs order, that is what the judge should make. However, the judge should hesitate before doing so, because of the practical difficulties which this causes and because of the steer given by rule 44.3(7).

(v)

In many cases the judge can and should reflect the relative success of the parties on different issues by making a proportionate costs order.

(vi)

In considering the circumstances of the case the judge will have regard not only to any part 36 offers made but also to each party’s approach to negotiations (insofar as admissible) and general conduct of the litigation.

(vii)

If (a) one party makes an order offer under part 36 or an admissible offer within rule 44.3(4)(c) which is nearly but not quite sufficient, and (b) the other party rejects that offer outright without any attempt to negotiate, then it might be appropriate to penalise the second party in costs.

(viii)

In assessing a proportionate costs order the judge should consider what costs are referable to each issue and what costs are common to several issues. It will often be reasonable for the overall winner to recover not only the costs specific to the issues which he has won but also the common costs”.

The present case was essentially one where the exercise of the discretion to award costs had to reflect the reality that Quayside had substantially failed on its counterclaim, which on any basis was substantially exaggerated. Moreover consideration clearly had to be given to whether an issue based, or partial, costs order was appropriate.

Second, in my judgment the judge failed adequately to consider the respective conduct of the parties of the litigation and adjudication processes.

In paragraph 6 of his costs judgment the judge appears to be criticising Walker for not having utilised the pre-action protocol and for having started the action prior to seeking adjudication. In the event neither of those matters justified criticism or resulted in unnecessary, or increased, costs. On the contrary, adoption of the pre-action protocol would have been a waste of time. The parties were already in discussion and Quayside was clearly being dilatory in formulating its counterclaim, as can be seen from the fact that Quayside took some two years from the date of the adjudicator's decision in December 2008 to formulate its counterclaim in the sum of £169,138.80.

By way of contrast, the judge failed to level any criticism at Quayside in respect of the manner in which it conducted the litigation or pursued its counterclaim. Criticism was clearly justified. Quayside’s claim for repayment of the sum of £8941.16 awarded by the adjudicator, effectively involved re-litigation of the drainage issues which had been explored in some considerable detail in the adjudication. Quayside attempted to avoid that task by the erroneous arguments to which I have already referred on the cross-appeal. Viewed on any basis, Quayside's counterclaim was exaggerated, whether regarded as a claim for £169,138.80 as it stood in December 2010, or as subsequently reduced to £84,168.22 shortly before trial. But the judge, in coming to his costs decision, appears to have paid no regard to Quayside’s conduct in pursuing an inflated claim, which must have involved considerable exploration of evidence at trial, nor to its continued assertion that the adjudicator had wrongly awarded sums to Walker. Nor does the judge appear to have considered Quayside's delay in formulating its claim, with the result that its claim for a mere £10,000 odd dragged on for a further 5 years after the adjudication.

Third, I accept Lord Marks’ submission that, in those circumstances, the judge should have approached the question of costs on the basis that the very best Quayside could do - on the basis of an application of the general rule and before he came to consider the Calderbank offers – was to secure an order that Walker pay a proportion of its costs; and that that approach should then have governed the judge’s approach to the Calderbank offers when he came to consider them.

Fourth, the judge, when considering Walker's Calderbank offer dated 5 January 2011 does not appear to have given appropriate weight to the fact that Walker could not realistically have made a Part 36 offer in January 2011, because that would have had the automatic consequence that, if the offer were accepted, Quayside would have been entitled to all its costs of the proceedings to date; see CPR 36.10(1). As Tomlinson LJ pointed out in Medway Primary Care Trust v Marcus [2011] EWCA Civ 750 at paragraphs 51 and 52, in those circumstances a Part 36 offer can have unjust and disproportionate cost consequences:

“51.

… even a Part 36 offer made here at the first reasonable opportunity would have attracted wholly disproportionate costs consequences.

52.

… I agree with the President that the Appellants might appropriately have made a Calderbank type offer which would have rendered this debate unnecessary. Such an offer would have been of very considerable benefit to the Claimant if you are accepted because it would have insulated him from an order such as is now being made to pay the Defendant’s costs, or a substantial part thereof, incurred in defending over a long period the ultimately unsuccessful claim. Had the Defendants at the first reasonable opportunity offered £3,000 together with costs proportionate to that recovery, their claim to recover the entirety of their costs thereafter incurred would, in my view, have been strong, if not unanswerable. However, the failure of the Defendants to make such an offer, which would not have been accepted, does not compel the court to make an order for costs which does not reflect the realities of the litigation.”

See also Fairclough Homes Ltd v Summers [2012] UKSC 26 at paragraphs 53 and 54.

However the judge does appear to have recognised at paragraph 18 of his costs judgment that, if Walker had accepted Quayside’s Part 36 offer made on 3 May 2011, that would have involved Walker in:

“having to pay costs assessed on the basis of the counterclaims that then stood at £169,000, producing a wholly disproportionate sum of costs”.

But, as Lord Marks pointed out, exactly the same consideration would have applied to the making of a Part 36 offer instead of a Calderbank offer in January 2011.

Mr Browne sought to suggest that the decision in Fox v Foundation Piling Limited [2011] EWCA Civ 790 was inconsistent with the decision in Medway. He submitted that the fact that a claimant had succeeded in part only should not lead to a reduction in the recovery of costs and should not have been expected to lead to such a reduction when the Calderbank offer was made. I do not accept that submission. All costs cases are highly fact-dependent. Fox was a personal injury case. At paragraphs 46 - 49 Jackson LJ said:

“46.

A not uncommon scenario is that both parties turn out to have been over-optimistic in their Part 36 offers. The claimant recovers more than the defendant has previously offered to pay, but less than the claimant has previously offered to accept. In such a case the claimant should normally be regarded as “the successful party” within rule 44.3 (2). The claimant has been forced to bring proceedings in order to recover the sum awarded. He has done so and his claim has been vindicated to that extent.

47.

In that situation the starting point is that the successful party should recover its costs from the other side: see rule 44.3 (2) (a). The next stage is to consider whether any adjustment should be made to reflect issues on which the successful party has lost or other circumstances. An adjustment may be required to reflect the costs referable to a discrete issue which the successful party has lost. An adjustment may also be required to compensate the unsuccessful party for costs which it was caused to incur by reason of unreasonable conduct on the part of the successful party”.

48

. In a personal injury action the fact that the Claimant has won on some issues and lost on other issues along the way is not normally a reason for depriving the Claimant of part of his costs: see Goodwin v Bennett UK Limited [2008] EWCA Civ 165. For example the claimant may succeed on some of the pleaded particulars of negligence but not others….

49.

Nevertheless in other cases as stated above the fact that the successful party has failed on certain issues may constitute a good reason for modifying the costs order in his favour. This is commonly achieved by awarding the successful party a specified proportion of its costs. In Widlake the facts were so extreme that the successful party was ordered to bear all of its own costs.”

In the light if these comments, I see no inconsistency between the two cases.

Fifth, in my judgment the judge failed adequately to consider whether Walker's Calderbank offer of 5 January 2011 (£30,000 inclusive of costs) represented a reasonable offer to settle, having regard to the judgment ultimately achieved by Quayside, the appropriate proportion of Quayside’s costs that Walker might reasonably have expected to pay on the basis of such a recovery, and the amount of such costs, assessed on a standard basis, subject to relevant set offs and reductions. In their letter dated 7 January 2011 in response to Walker's Calderbank offer, Quayside's solicitors wrote:

“we note your client's offer which does not even come close to covering our client’s costs let alone the sums claimed”.

At paragraphs 12 and 13 of the costs judgment the judge said:

“12.

Quayside’s solicitors are clearly stating then that they have incurred over £30,000 worth of costs by January 2011 and I see absolutely no reason to doubt that. I know that there is a generous discretion allowed to solicitors in making bold statements of fact in inter-solicitor correspondence, but I do not see that as such a statement. I can readily accept it at its face value.

13.

Indeed, it is interesting to note that just over two months later on 2 March 2011 Quayside’s solicitors wrote setting out their costs to date, reaching a grand total of £50,415.85 including some £40,000 odd worth of profit costs. It seems very possible to me that level of costs might well have been incurred reasonably, and certainly not wholly unreasonably. Working back the two months to January 2011 it would then appear that over £30,000 worth of costs certainly had been incurred on a standard basis”.

In other words the judge appears to have accepted that a figure in the region of, or possibly in excess of, £30,000 had been incurred by 5 January 2011 in respect of costs on the indemnity basis. As Lord Marks submitted, the judge should then have asked himself whether the allowance of about £19,000 for costs, in Walker's Calderbank offer, given Quayside's ultimate recovery of about £11,000, represented a reasonable offer on costs. I accept Lord Marks' submission that such an offer was indeed a reasonable and proportionate one. The judge was entitled to look at the matter with the benefit of hindsight and in the knowledge that Quayside had made a very small recovery on its counterclaim. Whether or not he went into the detailed arithmetic, there were certainly grounds for calculating on a rough and ready basis that, against a figure of £30,000 plus of costs on the indemnity basis, substantial deductions would have needed to have been made to reflect:

In my judgment, on any realistic appraisal of the position as at 5 January 2011, the judge should have come to the conclusion that, given the ultimate outcome, an offer to pay costs in a net sum of £19,000 as at 5 January 2011 was in fact generous and that Quayside had not beaten that offer. He should consequently have found that Walker's Calderbank offer of £30,000 inclusive was an offer which Quayside should have accepted. Moreover a reality crosscheck would have demonstrated that a recovery of £19,000 in respect of costs at the early stages of this case was proportionate. There was therefore no reason for Walker to have accepted Quayside's subsequent Calderbank offer dated 8 March 2011 which invited Walker to pay £40,000 inclusive of costs.

Mr Browne submitted that the fact that Quayside "elected not to pursue a large element of the counterclaim" and abandoned £90,000 of its claim, was not unreasonable and that, accordingly, Quayside should not be penalized for adopting a proportionate approach. I disagree. In the context of this particular claim, where quite clearly a large proportion of Quayside's costs must have been attributable to its abandoned claims for defects, I see no reason why any offer from Walker had to cater for what would have been irrecoverable costs.

Nor was there anything in Mr Browne's submission that these were not arguments put forward by Walker below. While junior counsel may not have given the argument the prominence they received in Lord Marks' submission before this court, they clearly featured in his arguments below. Indeed the Calderbank letter itself took the point that Quayside should not have all its costs to the date of the letter, even though the ground upon which the letter relied was Quayside’s conduct.

Nor was I impressed by Mr Browne's submissions that a Calderbank offer should not be all-inclusive, that it could not provide costs protection or that, for the judge to have paid more regard to Walker's Calderbank offer, would have wrongly elevated Calderbank offers to the same status as Part 36 offers. I see no reason why requirements of certainty or the desirability of the clarity which a Part 36 offer provides, should, in the particular circumstances of the present case, where a Part 36 offer would, for the reasons which I have already indicated, have been disproportionate and unjust, prevent a judge from properly analysing the effect of one party’s Calderbank offer. This was not a case where the judge needed to go into a minute analysis of the position as at January 2011. A general consideration of the features which I have set out above was all that was required.

Sixth, I take the view that the judge's consideration of Quayside’s Part 36 offer dated 3 May 2011 (i.e. Walker to pay £100 plus the entirety of its costs) and his conclusion that Walker should have accepted that offer and therefore should pay the entirety of Quayside's costs from 16 December 2008 to 24 May 2011 on the standard basis and from 25 May 2011 on the indemnity basis, was also flawed. Although the judge appeared to have recognised in paragraph 18 of his judgment that for Walker to have accepted that Part 36 offer would have rendered Walker liable for “a wholly disproportionate sum of costs”, he did not act on that conclusion in making his award. On any basis, after a trial, there were strong grounds for disallowing a substantial proportion of Quayside's costs in so far as they related to the abandoned, or unsuccessful, elements of its counterclaim. This was not a case, contrary to the arguments put forward by Mr Browne on the basis of Lahey v Pirelli Tyres [2007] EWCA Civ 91, where, if Walker had accepted the Part 36 offer in 2011, it would have been in any way realistic to have supposed that the costs judge on an assessment would, in effect, have attempted to ascertain which, if any, elements of Quayside's counterclaim, which then stood at £86,839.24, were unsustainable and then exercised his residual power to disallow costs post issue on the footing that they were costs "unreasonably incurred" under rule 44.4(1). Nor is it realistic to suppose that, following the judge's costs judgment, a costs judge on an assessment would be likely to reduce or disallow the costs recoverable by Quayside in the exercise of his powers under the rule. That would in effect be relitigating issues that were fairly and squarely before the judge and within his knowledge.

Although he did not expressly say so, the judge clearly exercised his discretion on the basis that rule 36.14 (1) (b) applied (because Quayside's Part 36 offer had been bettered at trial). But even on that basis he should, in my judgment, have taken into account whether it was just to apply the consequences set out in that rule.

In circumstances where the judge has exercised his discretion in a manner that is wrong in principle, it is for the Court of Appeal to exercise its discretion afresh. I accept Lord Marks' submissions that an appropriate order which recognised the effectiveness of Walker’s Calderbank offer would be:

Had it not been for the time wasted by Walker at trial in litigating the contractual issues referred to at paragraphs 22-32 of the judgment, I might have awarded Quayside a lesser percentage of its costs than 50% under (ii) above. But in his oral submissions Lord Marks wisely did not press for any lower percentage than 50%.

Accordingly I would allow Walker’s appeal and dismiss Quayside’s cross-appeal.

I agree.

I also agree.