An interesting point came up two weeks ago in Aspect Contracts (Asbestos) Limited v Higgins Construction Plc. The question was, in effect, if someone pays out under an adjudicator's decision (which is typically of temporarily binding effect) when must they commence any court or arbitral proceedings to arrive a final and binding position (and hopefully get it back)?

There was no argument that the relevant limitation period (the time from the cause of action arising to the latest date that a claim can be commenced) was 6 years. So the real question the court had to answer was 'does the cause of action run from the date that the sums were paid under the adjudicator's decision or does it run from the date of the original breach of contract/when damage arose that was caused by a breach of duty of care'. The latter is by necessity earlier than the former.

Aspect (the party unhappy without the outcome of the adjudication) was hoping that the answer was the former but the court said no, there is no cause of action arising out of payment of sums under an adjudicator's decision. This may sound harsh to those on the receiving end of an adjudication launched at the 11th hour, but the judge considered that it is always open for parties that are aware that complaints have been made to seek negative declarations from the court. This means that they can ask the court to confirm that they didn't do anything wrong.

So don't be fully sidetracked by an 11th hour adjudication, if you have already had to wait that long then it is probably time to be thinking of court proceedings at the same time.

Aspect, represented by Mills & Reeve, have been granted permission to appeal.