Danion Limited v IPS Roofing Limited

By Part 7 proceedings issued on 22^nd December 2025 and an accompanying application supported by the first witness statement of Christopher Hough of the Claimant’s solicitors of the same date, the Claimant seeks summary judgment against the Defendant in the sum of £187,279.72, through the procedure approved of by the TCC, by way of enforcement of the decision of Mark Borg acting as a construction dispute adjudicator (“the Adjudicator”), dated 21^st November 2025, the Defendant having failed to abide by the outcome of that adjudication. By Order of 20^th January 2026, Constable J transferred the proceedings to the TCC at Liverpool and certified that they are suitable for disposal by a District Judge.

The Defendant, acting in person, filed a Defence on 4^th February 2026 together with a witness statement of Gavin Bowers, a director of the Defendant company, of the same date, opposing the application. This was responded to by the second witness statement of Mr Hough, dated 11^th February 2026.

On 3^rd March 2026, two days before the hearing, the Defendant applied to adjourn on the grounds of difficulty encountered in obtaining direct access representation and a failure to realise that further documentary evidence from the adjudication was required to be filed and served in these proceedings, in order to be relied upon by the Defendant.

As all the additional documentation caused no difficulty to the Claimant, the Claimant having seen the same in the course of the adjudication, the residual issue of housekeeping at the hearing was whether an adjournment should be granted. By way of further background, the lateness of instruction also meant that the Defendant, through Mr Lacey, had been unable to produce a skeleton argument on the substance of the enforcement application.

I decided, with the help of counsel, that the pragmatic way forward was to hear Mr Lacey’s submissions and then to invite Mr Bowling’s view as to whether he was properly able to respond or whether an adjournment would be required, to give a fair opportunity for the preparation of his response.

As it transpired, an adjournment was not required and I am grateful to both counsel for their assistance in completing submissions in the time available. However, in consequence, the need to reserve this judgment became inevitable.

The Claimant sub-contractor was engaged by the Defendant to carry out specialist scaffolding-related works at a site in High Street, Southampton, pursuant to a JCT standard building sub-contract dated 2^nd August 2023. The parties are in agreement that, at least towards the end, the contractual relationship was not a happy one. Some detail is required, in terms of the adjudication process itself.

On 28^th July 2025 the Claimant submitted Application for Payment No. 20, which valuation was disputed by the Defendant, which also sought to deduct delay costs and liquidated damages.

Pursuant to s. 108 of the Housing Grants, Construction and Regeneration Act 1996 (as amended) (“the Act”) and clause 8.2 of the Sub-Contract Conditions, the Scheme for Construction Contracts (England and Wales) Regulations 1998 (as amended) (“the Scheme”), Notice of Adjudication (“the Notice”) was given on 22^nd October 2025, which set out the dispute as follows:

“The Dispute

5.

Danion submitted its Application No. 20 on 28 July 2025 in the sum of £629,300.84.

6.

On 12 August 2025, IPS issued its responding valuation No. 19 assessing the value of the account as £446,799.56 and a negative payment of £161.21. This left a disputed amount of £182,501.28, which represented the difference between the two assessments.

7.

On 6 October 2025 IPS increased its claim for delay from £85,024.56 to £95,652.63.

8.

Danion accepts that it is not entitled to payment from item 15 in the sum of £718.75 because the work was not carried out and therefore deducts that sum from the claim.

9.

Payment to date is £446,960.77 giving an underpayment of £181,621.31.

10.

IPS has improperly and unlawfully withheld or deducted significant sums from monies due under the Sub-Contract, without valid notice or substantiation. These deductions include disputed Variations as well as hire charge discrepancies.

11.

In addition, IPS has imposed unilateral deductions for alleged liquidated damages and damage claims and seeks to recover purported delay costs of £85,024.56. Danion rejects these deductions in their entirety.

12.

Accordingly, Danion will seek adjudication on the validity of these deductions and a determination that the withheld sums are properly payable.”

The relief sought was as follows:

“Relief Sought

15.

Danion will apply to the RICS for the nomination of an Adjudicator to decide the dispute and will request the Adjudicator to: -

a.

Award Danion the sum of £181,621.31 plus VAT (or such other sum as the Adjudicator decides to be due).

b.

Award Danion interest on sums found to be outstanding and due to Danion.

c.

Declare that IPS is liable for all of the Adjudicator’s fees and expenses.

d.

Order that payment is to be made by IPS to Danion within 7 days of the Adjudicator’s Decision.

16.

As at the date of this notice, Danion claims from IPS £181,621.31 plus VAT and interest at the sums and rates decided by the adjudicator.

17.

The documents referred to in this notice are the Sub-Contract, Danion’s application No.20 and IPS Roofing Ltd’s response No.19 with Danion’s comments against the deductions.”

The Adjudicator was appointed on 24^th October 2025 and the Referral followed on 29^th October 2025, containing the following:

“THE DISPUTE

10.

Danion submitted its Application No. 20 on 28 July 2025 in the sum of £629,300.84.

11.

On 12 August 2025, IPS issued its responding valuation No. 19 assessing the value of the account as £446,799.56 and a negative payment of £161.21. This left a disputed amount of £182,501.28, which represented the difference between the two assessments.

12.

On 6 October 2025 IPS increased its claim for delay from £85,024.56 to £95,652.63.

13.

Danion accepts that it is not entitled to payment from item 15 in the sum of £718.75 because the work was not carried out and therefore deducts that sum from the claim.

14.

Payment to date is £446,960.77 giving an underpayment of £181,621.31.

15.

IPS has improperly and unlawfully withheld or deducted significant sums from monies due under the Sub-Contract, without valid notice or substantiation. These deductions include disputed Variations as well as hire charge discrepancies.

16.

In addition, IPS has imposed unilateral deductions for alleged liquidated damages and damage claims and seeks to recover purported delay costs of £85,024.56. Danion rejects these deductions in their entirety.

17.

Accordingly, Danion seeks adjudication on the validity of these deductions and a determination that the withheld sums are properly payable.

18.

Danion submitted Application for Payment No. 20 on 28 July 2025, seeking a final account of £629,300.84. IPS Roofing issued Payment Certificate No. 20 on 12 August 2025, valuing the payment at nil (£0.00).

19.

The discrepancy arises from IPS’s arbitrary deductions

totaling (sic) £182,501.28, which it attributed to alleged LADs, delay costs, and unsubstantiated variations. Danion rejects these deductions entirely.”

The Defendant’s Response is dated 3^rd November 2025 and includes the following by way of Executive Summary:

“IPS disputes the entirety of the Referring Party’s claim in the sum of £181,621.31 + VAT and interest. IPS maintains that all sums due have been properly assessed, certified, and paid in accordance with the Sub-Contract dated 2 August 2023, executed under the JCT Standard Building Sub-Contract with Subcontractor’s Design (SBCSub/D 2016 Edition).

Danion’s Referral relies on unsubstantiated variations, duplicated hire charges, and inflated valuations unsupported by contractual instructions or evidence.

IPS asserts that:

- It has complied fully with the payment provisions of Clause 4.6 and Section 110A of the Housing Grants, Construction and Regeneration Act 1996 (as amended);

- Valid Payment and Pay Less Notices were served;

- All valuations were properly made and paid;

- Deductions made for delay, incomplete works, and unsubstantiated variations were lawful and contractually justified.

IPS respectfully requests that the Adjudicator dismiss the Referral in full and determine that no further payment is due to Danion Ltd.”

By way of “Background and Chronology”, the Response continued:

“… Danion’s Application No. 19 (dated 7 July 2025) sought £599,300.84, including extended hire and access charges, numerous alleged “approved variations”, prolongation costs, and claims for items not completed.

IPS issued Valuation No. 20 on 8 August 2025, valuing the account at £446,799.56, with deductions for non-compliance and delay. This valuation was properly notified under Clause 4.6.

IPS has paid all sums due under the last valid certificate. Danion’s claim is therefore an attempt to reopen settled valuations without contractual or evidential foundation.”

The body of the Response then went on to address the Referral by way of categories, namely “Alleged Underpayment”, “Variations”, “Extended Hire Charges”, “Delay and Liquidated Damages (LADs)”, “Validity of Notices” and “Interest”.

The bundle of documentation referred by the Defendant to the Adjudicator in support of the Response comprised:

“1.

Executed Sub-Contract (dated 2 August 2023);

2.

Danion Valuation No. 19 & 20;

3.

Payment notices and correspondence confirming service;

4.

Programme evidence showing delays attributable to Danion;

5.

Emails and site records demonstrating lack of instruction for alleged variations;

6.

Photographic evidence of incomplete and delayed works.

7.IPS claim against Danion

8.

Vistry Contract documents - 2023.07.05”

The Defendant requested the following relief:

“a.

Dismiss Danion Ltd’s claim in full;

b.

Confirm that IPS Roofing Ltd’s Valuation No. 19 & 20 represents the correct contractual valuation;

c.

Confirm that no further sums are payable to Danion under the Sub-Contract;

d.

Confirm IPS’s right to deduct delay-related costs and LADs where appropriate;

e.

Order that Danion Ltd bear the Adjudicator’s fees and costs of this adjudication.”

The Defendant did not reserve its rights in relation to jurisdiction as a threshold issue.

By way of Reply dated 10^th October 2025 (Footnote: ¹), the Claimant raised the issue of the burden of proof in terms of the Claimant being at fault for alleged delays and the issue of the importance of criticality in terms of impact upon the works generally on the issue of liquidated damages.

The Reply also addressed the issue of Validity of Notices as raised in the Response:

“Validity of Notices:

Danion asserts IPS Failed to issue valid notices. This is incorrect. Payment and Pay Less Notices were served within the statutory timeframes. Therefore, the notified sum is the amount stated in IPS’s notice, not the amount claimed by Danion.

Response

The claim is misunderstood. There is no claim that statutory notices were not served. The claim is that no valid argument to deduct has been made.”

In his Decision, at paragraph 1.4, the Adjudicator noted:

“1.4

DISPUTE REFERRED

1.4.1

The nature of the dispute between the Parties concerns the

valuation and payment of Application No.20.”

He then recorded the Claimant’s request for relief as set out at paragraph 15 of the Notice and the Defendant’s request for relief as set out at paragraph 16 above. Then at 1.4.5, he stated:

“Accordingly, I proceed to reach a decision on the matters referred

in the Notice.”

At 2.1.1, he set out the core issue to be decided:

“Issue 1 – What is the valuation of Application No.20 dated 28 July 2025, and what sum (if any) is due from IPS to Danion?”

His conclusion on this issue is at 4.2.77 (repeated at 5.1):

“Accordingly, I find that for the purpose of Application No.20 the gross valuation is £622,982.09, and therefore, the sum due from IPS to Danion is £176,021.32 (excluding VAT), being £622,982.09 less previously certified at £446,960.77. For the purpose of Application No.20, IPS is not entitled to deduct sums for the IPS delay costs and liquidated damages under the main contract.”

One consequence of the instruction of Mr Lacey is that issues raised by way of the Defendant’s opposition to enforcement evolved, to an extent, from those raised in the Defence and in Mr Bowers’ witness statement, albeit that the Defendant continues to argue under the gateway heads of (1) lack of jurisdiction, namely deciding undisputed matters outside of the Adjudicator’s jurisdiction and (2) breach of the rules of natural justice, namely by the Adjudicator employing methodologies and taking points not put to the parties during the Adjudication.

Mr Lacey stressed the importance of the Notice by reference to section 7.70 of Coulson at p. 260:

“Without any doubt, the most important document in the adjudication process is the notice of intention to refer a dispute to adjudication, commonly known as the notice of adjudication. The authorities make it clear that any jurisdictional issues will be considered by reference to the nature, scope and extent of the dispute identified in the notice of adjudication. … (I)t is that dispute alone that the adjudicator has the jurisdiction to decide.”

and to section 4.20 at p. 119:

“It is impossible to over-emphasise the importance of the notice of adjudication. It is the cornerstone of both the adjudicator's jurisdiction and the scope and limit of the referring party's claim in the adjudication. … It is important to note at this stage that the notice must identify carefully the dispute and the nature of the redress sought. Numerous problems in adjudication and adjudication enforcement have arisen out of the referring party’s failure to provide an adequate notice of adjudication, and his subsequent attempts to make good that omission in the referral notice… The courts have made it plain that this is not a legitimate approach.”,

a passage quoted by Carr J (as she then was) in University of Brighton v Dovehouse Interiors [2014] EWHC 940 (TCC) @ 40.

At this stage, Mr Lacey noted that the Notice contains an error when referring, at paragraph 6, to the Defendant’s valuation No. “19” which, it is not disputed, should have said “20”, namely the actual number of the responding valuation or payment certificate in the expressed figure of £446,799.56.

Mr Lacey then focussed on the terminology utilised at paragraph 10 of the Notice and the content of paragraph 12 of the same, namely:

Thus, it is and should have been apparent, argues Mr Lacey, that this was a “notified sum” dispute pursuant to the regime under the Act, with the Claimant arguing that no valid notice had been given, such that the Defendant had to pay the notified sum and that that was the dispute notified, rather than a true value dispute as decided by the Adjudicator.

He then suggested that the Referral at paragraph 18 added a “new argument” that Payment Application 20 was seeking a final account, responded to by Payment Certificate 20.

He relied upon the contents of the Response in support of his contention that the Defendant thought this was a notified sum dispute and he disputes that the Reply is correct in characterising the claim as about invalidity of deductions and not validity of notices, when seen in context of the contents of the Notice.

In proceeding as the Adjudicator did by way of deciding the issue at 2.1.1 of his decision, it is said that the Adjudicator in essence accepted a unilateral variation of the Notice, carrying out a true value final account determination, rather than deciding an interim payment application dispute, which was clearly in excess of his jurisdiction.

Mr Bowling sought to argue three points in response to the jurisdictional arguments:-

Firstly, he argued that any reasonable recipient of the Notice would have understood straightaway exactly what the Claimant was seeking, namely a true value adjudication on Payment Application 20 and not a “smash and grab” adjudication. The reference at paragraph 6 of the Notice to £446,799.56 (and, I might add, the calculations consequent upon this) can only have meant valuation 20, valuation 19 being in an entirely different amount, namely £435,584.94. The Defendant is making, it is said a “Chancery point” as to “no. 19”, which, if it were deleted and without the insertion of “no.20”, would still make perfect sense in terms of a valuation dispute, see for example paragraph 17 of the Notice,

“The documents referred to in this notice are the Sub-Contract, Danion’s application No.20 and IPS Roofing Ltd’s response No.19 with Danion’s comments against the deductions.”.

This, he argues, should clearly be seen as an evaluative dispute, otherwise the sum sought would have remained that disputed as at paragraph 6 of the Notice, whereas a lower sum emerged after re-calculation when factoring the issues set out at the following paragraphs of the Notice, namely 7 and 8.

Further support, it is said, may be derived from the contents of the Response, which, in the second substantive paragraph of the Executive Summary, disputes the Claimant’s methodology in reaching then figures claimed. If there had been a genuine reaction on the part of the Defendant that the Adjudicator had been asked to decide a completely different issue, then, he submits, this would have been expected to feature large in Mr Bowers’ first statement and it simply does not do so, the jurisdictional challenges there being very narrowly defined.

Mr Bowling then pointed to the reference in the Response to the Claimant attempting to reopen settled valuations. This is said to exemplify that the Defendant knew precisely what was being sought, backed up by the decision to submit some of the documents relied upon, namely at items 4 – 8 of the Defendant’s documentary evidence in the adjudication.

Fundamentally, in any event, says Mr Bowling, the Defendant is, despite any argument to the contrary, attempting to take a threshold point without having reserved its right to do so. This needed to be done by way of a reservation at the beginning of the Response to the Referral, namely a statement contending that the Claimant had referred a dispute not identified in the Notice and that the Defendant was accordingly proceeding under protest. If this is not done, he contends, then a party must be taken to have waived its rights to raise arguments about jurisdiction arising from any such discrepancy at a later stage.

In summary, Mr Bowling characterised this issue as the type of point generally disapproved of, namely resulting from “combing through” the Decision in order to try to identify objections, which, ordinarily, should be rejected in a robust and commonsense way. In terms of the approach of the court to construction of the contents of the Notice, the Claimant prays in aid Mannai Investment v Eagle Star [1997] 1 AC 749 (HL) as cited at paragraph 3.79 of Coulson as authority for the proposition that “notices” have to be construed in a similar way to the underlying contract, namely objectively, in the manner in which a reasonable recipient would have understood them.

By way of final reply, Mr Lacey noted that the reference in Coulson to Mannai and “notices” is in the context of the Payment and Payless Notices procedure, which is quite a different animal from a “Notice of Adjudication”. He urges a literal, rather than an objective approach to construction and says that, although technical, it retains more than a fanciful prospect of succeeding at trial.

I remind myself that, in the context of a summary judgment application, I have to be satisfied, in order to reject any point advanced by the Defendant, that such a point has no real (as opposed to fanciful) prospect of success in terms of defending the claim and that there is no other compelling reason why a trial is required. I am also mindful of the approach of the TCC to such applications, namely that adjudicators’ decisions should be robustly enforced on a “pay now, argue later” basis, in furtherance of the will of Parliament, subject to limited lines of attack.

I agree with Mr Bowling that the true characterisation of this jurisdictional issue is one of a threshold nature, in other words fundamental to the Adjudicator’s ability properly to proceed to adjudicate on the dispute referred, as opposed to the Adjudicator otherwise being properly seized of the adjudication, but nevertheless straying beyond the issues referred to an unacceptable degree.

In my judgment, the Defendant is clearly arguing that the Adjudicator proceeded to decide a different dispute from the one actually referred on a true construction of the Notice, namely a true valuation dispute, rather than a notified sum issue.

It is well established that such issues of threshold jurisdiction must be raised by the party affected appropriately and clearly and that a failure to do so will result in that party to be taken to have waived any such jurisdictional objection, leading to an inability to avoid enforcement on such a ground, see Coulson LJ at the Court of Appeal stage of Bresco Electrical Services v Michael J Lonsdale [2019] EWCA Civ 27 @ 92.

In that the Defendant failed to take any such clear and appropriate jurisdictional position at the Response stage or at all prior to the giving of the decision, in my view this point must be taken to have been waived and has no real prospect of success at trial.

If I am wrong about this, I am similarly unpersuaded by the points taken on the contents of the Notice. The Notice, it seems to me, must derive its importance from being akin to a statement of case or claim form in a civil claim, both in terms of content and as being the originating document, as decided in University of Brighton v Dovehouse Interiors [2014] EWHC 940 (TCC). It is correct for Mr Lacey to note that the section on “Clarity of Notices” relied upon by Mr Bowling is directed at the Payment Notice regime under the Act, but ultimately, as the right to adjudicate in this case is embodied in the contract and Parliament has set out the pertinent requirements for the Notice at paragraph 1(3) of the Scheme, to include “the nature and a brief description of the dispute and of the parties involved” and “the nature of the redress which is sought”, the Notice, in my view, clearly needs to be construed as a whole, and not by microscopically focussing on individual words and phrases in isolation. As such, the objective approach derived from Mannai seems to me to be of assistance in this exercise in construction. To urge a literal construction may be seen as generally unattractive and I find it to be so here.

I therefore find that any reference to “no. 19” would be construed by an objective observer with appropriate knowledge as a mistaken reference intended to be “no. 20” in the context of the chronological progression from paragraph 5 to paragraph 6 of the Notice and the only way to make sense otherwise of the remaining parts of paragraph 6. In addition, this is, in my judgment, akin to the sort of technical failure, not giving rise to any fundamental doubt, as examined in University of Brighton e.g. @67. Furthermore, the matters in paragraphs 7 and 8, construed objectively, take the dispute away from the original application and responding valuation to the ultimate headline figure at paragraph 9 and, as explained at paragraphs 10 and 11, objectively, it is the Defendant’s approach to deductions in total, including disputed variations, hire charge discrepancies and liquidated damages which are in issue. This, from the Claimant’s perspective, goes beyond the headline figure emerging from the Payment / Payless Notices process outlined at paragraph 6 and arrives at a different total for the claim.

Then, by way of further objective analysis, the relief sought is not the figure contended for in paragraph 6, but rather the new figure emerging ultimately, “or such other sum as the Adjudicator decides to be due”.

As noted by Mr Bowling, in addition the Defendant did not stop at saying that this was a notified sum dispute, but rather then engaged within the Adjudication on the valuation of the deductions issue, in the manner highlighted by him. Mr Bowers also did not raise any failure to address a notified sum argument in his witness statement.

As such, I find that there is no real prospect of success at trial in establishing that the Adjudicator strayed from his jurisdiction in engaging in a true value exercise. Ultimately, even though an argument might exist that the Defendant might have wished the Adjudicator to confine his decision to a notified sum point, that, in my view, does not mean that there is a real prospect of showing that the Adjudicator did not have jurisdiction to consider a true valuation, based upon the issues as actually set out by the Claimant in the Notice, as opposed to any wish by the Defendant that the issues ought to have been much more limited. Ultimately, the Notice sets out the Claimant’s claim, whether the Defendant agrees that that is the Claimant’s claim, or not, and does so, in my judgment, clearly and objectively to include a true valuation dispute.

Mr Lacey then contends that the Adjudicator decided important points on a basis for which neither party had contended and without fairly canvassing the issues. These he divides into two sections, for the purposes of illustrating materiality, which he accepts is a crucial element in terms of prospects of success, namely:

On his first issue, Mr Lacey demonstrated the contractual and statutory mechanism for the valuation of payment cycle 20 leading to the conclusion that the obligation was on the Claimant to pay the sum in payment certificate 20 namely -£161.21. On contending that, in such circumstances, the burden of proof should (contrary to the approach adopted by the Adjudicator) be on the Claimant to show why it should be paid more than this sum, he pointed to s. 111(8)(b) of the Act, although it seems to me this does no more than illustrate that it is open to the Adjudicator to decide that more than the certified sum should be paid, rather than directly addressing the burden of proof. The Defendant’s point here, I believe, is essentially “he (namely the Claimant) who asserts, must prove”.

By way of contrast, Mr Lacey highlights the Adjudicator’s approach in placing the burden of proof upon the Defendant at paragraphs 4.2.21, 4.2.48, 4.2.51 and 4.2.55 of his Decision, materially impacting upon about £30,000 of his decision. Although Mr Lacey accepts that the Adjudicator was entitled to be wrong in his approach, the unfairness arises out of a failure to canvass opinion on the approach adopted before reaching his decision.

On his second issue, Mr Lacey focusses in on paragraph 4.2.66 of the Decision in the context of delay costs offset by the Defendant,

“I accept Danion’s contention that there is no evidence linking the alleged delay activities to Danion. I find no cogent evidence that the alleged delays affected the critical path of the Project resulting in delay

to the completion of the works. I do not accept that the emails and apportionment of time satisfies the requirement to show, that on balance, Danion delayed the Project. I find that the evidence upon which delay days have been attributed do not provide a causal link to show how the said issue raised in the email delayed the critical path of the Project and caused delay.”,

which he described as “an eccentric piece of reasoning”. Consistent with his first point, he nevertheless accepts that the Adjudicator is entitled to be wrong, but contends that he should have invited submissions on what evidence he should be looking at, there being, he says, a great deal of evidence assisting with the causal link, including even the use of the word “critical”, which ought to have been given the chance to be addressed in submissions, see Roe Brickwork @26.

On the reverse burden argument, Mr Bowling submits, straightforwardly, that if the question is “what is due, if anything?”, each party bore the burden on their own figures. The Adjudicator found that the Defendant had not made out its positive case, the Claimant having discharged its burden through the evidence in the adjudication witness statement of Geoff Bonner dated 29^th October 2025. This, even if the Defendant is right, is, he says, a classic error of law situation and ultimately no evidence is relied upon by the Defendant to establish materiality, namely what difference the opportunity to make submissions would have made.

On the “critical path” issue, Mr Bowling strongly disputes the existence of any level of eccentricity here, contending that the Adjudicator’s approach was entirely conventional (see Keating on Construction Contracts, 12th ed., atpara. 8-062), having been supplied with evidence including the programme of works between Vistry (main contractor) and the Defendant. None of the evidence supplied, he submits, deals with the impact of delays upon Vistry’s project. Further, even if the Adjudicator had been persuaded to apply some other test, ultimately the decision was that the Defendant had failed to prove any losses, and therefore the outcome would have been exactly the same.

I am not persuaded that either of the points raised has a real prospect of success.

In my judgment, in that I have concluded that a true value adjudication was within the scope of the Notice, the arguments underlying the burden of proof point must fall away, founded as they are on a notional “notified sum” situation.

I also agree with Mr Bowling that, in any event, no evidence of materiality is relied upon by the Defendant, which in itself would also be fatal to this point and which the Court is entitled to expect to see at this stage.

Similarly, I reject the contention that the Adjudicator behaved eccentrically in utilising the “critical path” analysis. It is very evident from the Claimant’s Reply (see paras 9, 12, 14, 16 and 24) that the Claimant was inviting the Adjudicator to consider criticality. As such, in my view, it would have been open to the Defendant to join issue with such an analysis by way of Rejoinder and there can be no criticism of the fairness of the Adjudicator in proceeding in the way he did in the circumstances.

In any event, Mr Bowling’s point about failure to prove loss upon an alternative analysis is a good one in defeating the Defendant’s argument.

I have concluded that there are no real prospects of success on any of the points raised in opposition to the application and I find no other compelling reason why the claim should proceed to trial. The Claimant is accordingly entitled to summary judgment as sought.