A contractor claims £822,482 damages, plus interest, for breach of contract and in tort, from a company that carried out an asbestos survey. An adjudicator awards £490,627, plus interest, which the asbestos company pays. The contractor does nothing more about its claim and the 6 year limitation periods for its contract and tort claims expire. About a year later, the asbestos company starts court proceedings to recover what it paid to the contractor. The contractor counterclaims for the £333,855 balance of its claim and the asbestos company says that claim is too late. But was the asbestos company entitled to bring its claim and was it too late?

The Supreme Court said it was a necessary legal consequence of the Scheme, implied by the Construction Act into the parties’ contractual relationship, that the asbestos company must have a directly enforceable right to recover any overpayment consequential on the adjudicator’s decision, once there has been a final determination of the dispute. Either by contractual implication or, if not, then by virtue of an independent restitutionary obligation, repayment must to that extent be required and the court must, in addition, have power to order the payee to pay interest on the overpayment.

Since the asbestos company’s cause of action arose from payment and was only for repayment, it could (whether analysed in implied contractual or restitutionary terms) be brought at any time within six years after the date of payment (which it had been). The contractor could not pursue the balance of its original claim (as the limitation periods had expired) but it could rely on all aspects of its original claim in the court proceedings.

Aspect Contracts (Asbestos) Ltd v Higgins Construction Plc [2015] UK SC 38