In the recent case of Aspect Contracts (Asbestos) Ltd v Higgins Construction plc [2015] UKSC 38, the Supreme Court held that there is an implied term that a paying party in an adjudication under the Scheme for Construction Contracts (England and Wales) Regulations 1998 is entitled to have the dispute determined by litigation and is entitled to repayment of monies paid, if those court proceedings are successful.
The Supreme Court has held that the unsuccessful (paying) party in adjudication under the Scheme is entitled to the following:
- The benefit of an implied term entitling it to recover any overpayment that the adjudicator's decision has led to, once the court has finally determined the dispute.
- The right to seek a final determination by suing on the implied term, which arises on payment of the sums the adjudicator awarded against it.
- Six years from the date of payment to seek final determination and recover any overpayment. In other words the limitation period for the paying party to seek final determination of the dispute starts to run from the date of payment.
The court also held that it was the dispute as referred to the adjudicator that was to be finally determined. This included both the elements of the claim that the adjudicator had upheld and those that had been rejected. However, if the limitation period for the original claim for the breach of contract or tort had expired, a court could not order the receiving party more than it had received under the adjudicator's decision following the court determination.