Aspect Contracts (Asbestos) Ltd v Higgins Construction Plc
Citation: [2015] UKSC 38
Background Facts​
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In 2004, Aspect conducted an asbestos survey and issued a report in April 2004. In 2005, during redevelopment, Higgins discovered asbestos materials not identified in Aspect’s report. Higgins alleged losses due to this omission.
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​Higgins referred a claim for £822,482 to adjudication in 2009, alleging breach of contract and/or negligence.
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The adjudicator awarded Higgins £490,627 plus interest. Aspect paid £658,017 (including interest and costs).
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Higgins did not commence further proceedings to recover the balance or finalise the dispute.
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In 2012 (after limitation periods expired), Aspect started court proceedings seeking repayment of the sums it had paid, arguing it had overpaid based on the true merits.
​Judgment
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Supreme Court decision:
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Aspect was entitled to bring a claim to recover sums paid under the adjudicator’s decision.
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This right arose from an implied term in the Scheme for Construction Contracts (or alternatively, on a restitutionary basis).
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Aspect’s cause of action to recover overpayments ran for six years from the date of payment, not from the original breach.
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Key findings:
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The adjudicator’s decision is only temporarily binding, pending final determination in litigation, arbitration, or agreement.
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Aspect’s repayment claim was not time-barred; it fell within six years from its payment in August 2009.
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Outcome:
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The Supreme Court upheld the Court of Appeal’s ruling that Aspect could pursue its claim for repayment.
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The case was remitted to determine the substantive merits (whether money was truly owed).
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General Principles Developed
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Temporary nature of adjudicator’s decisions:
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Adjudication decisions are “interim” and binding only until the dispute is finally determined by court or arbitration.
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Right to final determination:
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Both paying and receiving parties retain the right to have the underlying dispute finally decided on the merits, regardless of the adjudicator’s provisional decision.
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Implied repayment right:
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There is an implied contractual term (from the Scheme) that a paying party can recover sums paid if it is later finally determined that no sums were due.
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Limitation periods:
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For repayment claims based on an adjudication payment, the limitation period runs from the date of payment, not from the original cause of action.
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Cash flow vs final account:
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The decision supports the policy that adjudication maintains cash flow temporarily but does not preclude eventual true valuation and adjustment.
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