VMA Services Ltd v Project One London Ltd [2025] EWHC 1815 (TCC)
In this case, Adrian Williamson KC, sitting as deputy High Court Judge in the Technology and Construction Court (“TCC”) enforced an adjudicator’s decision making a monetary award in favour of VMA, the Responding Party in the adjudication.
Background
The Parties entered into a contract on or around 16 October 2023 in the form of a Sub-Contract Order incorporating the JCT Design and Build Sub-Contract Agreement Conditions 2016 for the design and installation of mechanical works (the “Contract”). The usual provisions for interim payments were contained within.
On 21 June 2024, VMA Services Limited (in these proceedings the Claimant) (“VMA”) submitted their Application for Payment No.8 for the sum of £274,259.81 (“AP8”). The Employer (in these proceedings the Defendant), Project One London Limited (“POL”) failed to serve a timely Payment Notice or Pay Less Notice in accordance with the Contract, nor was payment made before the Final Date for Payment.
Adjudication
On 16 December 2024, the Defendant, Project One London Limited (“POL”), commenced a True Value Adjudication against the claimant, VMA’s Application for Payment Number 8 dated 21 June 2024 (“the Adjudication”). The adjudicator’s decision dated 10 February 2025 dismissed POL’s claims on the basis that POL had failed to make payment of the nominated sum prior to commencement of the Adjudication and therefore POL were liable to make payment of the notified sum to VMA (“the Decision”). The adjudicator made the Decision on the basis that AFP8 was the notified sum and where a party has failed to comply with its immediate payment obligation, it is not entitled to adjudicate on the true value dispute. The adjudicator found that the non-payment of the notified sum served as a successful defence for VMA and decided that POL should make payment to VMA of the balance of AFP8 as well as interest. Thus, the adjudicator concluded that it was not required to embark on a true value of the Works.
These Proceedings
In these proceedings, VMA sought summary judgment to enforce the adjudicator’s Decision that the nominated sum (the balance of AP8) was due to be paid from POL to VMA.
The central issue considered by the Judge was whether the adjudicator had the jurisdiction to make a monetary award in favour of VMA despite being Respondent to the Adjudication.
Decision
The Judge found in favour of VMA and that the adjudicator was correct in his decision to consider the notified sum defence and make a declaration as to payment of the notified sum.
In making this decision, the Judge placed reliance on the judgement of Mr Singer KC, sitting as TCC Judge in WRW Construction Limited v Datblygau Davies Developments Limited [2020] EWHC 1965 (TCC), which at paragraph 19 states: ‘it would be contrary to principle and established authority for the Court to effectively force a party who has the benefit of an award in its favour as far as a balance being due to it, thereafter to have to commence a further adjudication (to which there is no defence)’.
HHJ Williamson found this reasoning persuasive, commenting that where sums are immediately due to a Respondent, such as the payment of a notified sum, the principles set out in the case of Bresco may not apply. In considering the wording of paragraph 23(2) of the Scheme, which states “the decision of the adjudicator shall be binding on the parties, and they shall comply with it until the dispute is finally determined”, HHJ Williamson agreed with the submission of VMA, noting that it would be right to force VMA to commence another adjudication to recover a sum which has already been determined due to them.
Click here to view the full judgement: VMA Services Ltd v Project One London Ltd [2025] EWHC 1815 (TCC)
London Eco Homes Ltd v Raise Now Ealing Ltd [2025] EWHC 1505 (TCC) (25 March 2025)
In November 2021, Raise Now Ealing Limited (“RNE”) employed London Eco Homes Limited (“LEH”) as building contractor under an Intermediate Building Contract with contractor’s design (“the Original Contract”). The Original Contract contained the usual adjudication provisions at clause 9.2. Various disputes arose during performance of the Original Contract, which were subject to a negotiated settlement agreement dated 8 August 2023 (“the Settlement Agreement”). RNE failed to make payment in accordance with the Settlement Agreement and LEH served a notice of Adjudication dated 15 May 2024 to seek payment of the balance of the sums owed under the Settlement Agreement.
RNE raised a jurisdictional challenge on the grounds that there was no provision for adjudication in the settlement agreement. The adjudicator dismissed this challenge, finding that RNE should make payment of £95,000, that being the balance of sums due under the Settlement Agreement, and that RNE should be responsible for the adjudicator’s fees.
These sums remained unpaid, therefore LEH issued Part 7 enforcement proceedings on 7 October 2024 seeking a total of £125,748.11.
Key Legal Issues
The main issue the Judge had to consider was whether the Settlement Agreement could be construed as a variation of the Original Contract and therefore be subject to the adjudication provisions therein.
Judgement
The Judge found that clause 2.7 of the Settlement Agreement did make provision for construction operations, specifically for works or modifications required for sign-off of the warranty, therefore section104(5) of the Act was engaged. However, as this dispute did not arise out of the provision of such “necessary works or modifications”, the Judge found that there was not a sufficient connection to construction operations to engage section 108 of the Act.
The Judge noted that the adjudication provision at Article 7 of the Original Contract mirrored the statutory wording of “any dispute arising under the contract”. Reliance was placed on the fact that the Settlement Agreement draws directly upon the termination mechanism in the Original Contract, as the parties agreed that the default notice and termination notice were accepted and served “in accordance with the JCT Contract”. The Settlement Agreement varies the Original Contract mechanism for determining a final sum due, as RNE was to pay LEH an agreed sum of £188,750 by way of Termination Payment “in full and final settlement of the final account in relation to the Project and the JCT Contract and all claims that may have existed prior and after this agreement between LEH and RNE”. This was therefore determined by the Judge to be consideration for the variation of the Original Contract.
The Judge found in favour of LEH, ordering summary judgment.
Click here to view the full judgement: London Eco Homes Ltd v Raise Now Ealing Ltd [2025] EWHC 1505 (TCC) (25 March 2025)
Kyndryl UK Limited v Jaguar Land Rover Limited [2025] EWHC 1354 (TCC)
In this application, Jaguar Land Rover Limited (the Defendant) (“JLR”) sought an Unless Order, which would require Kyndryl Uk Limited (the Claimant) (“Kyndryl”) to comply with the JLR’s Requests for Further Information (“RFI”). Under the terms of the Unless Order, if the Kyndryl failed to comply, their claim would be struck out.
Background to the claim
This claim for breach of contract, compensation for additional services and unjust enrichment for services provided without payment was brought against JLR in relation to the Data Centre and Hosting Agreement (“DCHA”) entered into between IBM Group and JLR. Kyndryl is part of the Kyndryl group, which provides IT infrastructure services. The Kyndryl group took over the IBM Group global technology services business, which was transferred to Kyndryl by way of a Sale Purchase Agreement dated 1 September 2021 (“the SPA”). This was relevant in as far as Kyndryl claim they were entitled to bring proceedings on the basis they are an assignee of the IBM Group pursuant to the SPA.
The dispute was borne out of a failed IT migration project.
Kyndryl inherited this dispute, which started in 2013, when JLR’s IT infrastructure had become severely outdated and expensive for IBM to maintain. IBM and JLR agreed to the use of an alternative model with a means to saving costs. Consequently, IBM and JLR executed a Change Control Notice “(CCN025”), following the procedure of the DCHA.
The revised model was never implemented, as JLR realised that they could not afford the cost of the consultants they had engaged to manage the migration.
Between 2019 and 2020, the parties entered into negotiations however could not reach a final agreement as to terms. In November 2020, JLR gave notice to terminate the DCHA.
On 20 July 2023, Kyndryl issued proceedings against JLR.
The Application
By application dated 20 December 2024, as amended on 5 February 2025, the Defendant sought an Unless Order, requiring Kyndryl to provide sufficient and proper responses to their RFI.
The first issue before the court was whether JLR were acting properly in their Requests for Further Information pursuant to Part 18 and whether Kyndryl’s response was adequate. Secondly, did Kyndryl’s, allegedly insufficient responses justify striking out the claim. Finally, should Kyndryl be allowed to re-amend their claim form.
The Judge held that the application should fail for the following reasons:
- The requests submitted were not “strictly confined to matters which are reasonably necessary and proportionate to enable JLR to prepare its own case or to understand the case it has to meet”, as required by Practice Direction 18.
- The Judge went further at paragraph 36 to state that even if “those threshold conditions had been satisfied, I would not have exercised my discretion in favour of JLR”, reasoning that exercising this power would not balance the legitimate interests of the parties.
- Additionally, the Judge noted that even if it concluded that there were deficiencies in Kyndryl’s responses to the requests, it would have been reluctant to strike out the claim, citing a lack of specificity in what is wrong with the answers given.