The End of Smash and Grab Adjudications

Wednesday 7th March 2018

The attraction of obtaining a quick and enforceable Adjudicator’s Decision based on a failure to serve a Payment Notice or Pay Less Notice might be at an end.

The TCC has ruled that an Employer whose Payment Notice or Pay Less Notice was deficient or non-existent could pay the Contractor the sum stated to be due in the Contractor’s interim application, and then seek, in an Adjudication, to dispute that the sum paid was the “true” value of the works for which the Contractor had claimed.

The same principle will apply as between Main Contractors and their Sub-Contractors.

The judgment delivered by Mr Justice Coulson in Grove Developments v S&T (UK) Ltd [2018] EWHC 123 (TCC) strikes a balance. It is still possible for technical claims to be referred to Adjudication based on a lack of proper notices – but the substantive value of that application can still be disputed and considered in a separate Adjudication.

So, before kicking off a technical claim, it’s worth asking what a successful result will now achieve.  If the “win” means the paying party makes what it feels is a significant over payment, expect a second Adjudication to follow hot on the heels of the first.