Unsuccessful party to adjudication has cause of action to recover overpayment

In Aspect Contracts (Asbestos) Ltd v Higgins Construction plc [2013] EWCA 1541, [2013] All ER (D) 339 (Nov) the Court of Appeal allowed an appeal from the decision of Mr Justice Akenhead (on which see our June 2013 issue pp 4-8) and held that it was an implied term of the contract between the parties that an unsuccessful party to an adjudication would be entitled to seek a final determination of the matter by way of litigation and, if it succeeded in that claim, to recover any overpayment made. The cause of action to recover that overpayment accrued on the date on which the original payment was made with the consequence that the claim advanced on behalf of the claimant to recover the overpayment was not time-barred. However, the claim of the defendant to recover the balance of the sum which it had claimed in the adjudication was held to be time-barred on the ground that that claim arose from the claimant’s breach of contract or breach of duty which breach had occurred more than six years before the defendant’s counterclaim.