Here are our top 5 tips to help Contractors and Consultants get payment notices right:

  • Understand whether your contract is a ‘construction contract’ under the ‘Construction Act 1996’?

If your contract is a ‘construction contract’ as defined under the ‘Construction Act[1]’ then it must include payment provisions that comply with the requirements of the Construction Act. Insofar as a construction contract does not fully comply with the Construction Act, the relevant payment provisions of the Scheme[2] will be implied into the contract. This will impact on the timing and content of payment notices.

  • Treat amendments to “standard forms” with caution

Where a ‘standard form’ of contract (e.g. JCT, NEC, FIDIC) has been amended by a schedule of amendments, check whether the payment provisions have been amended and understand the impact.

  • Understand the payment provisions and diarise key dates

Ensure key personnel understand the payment provisions and diarise key dates in the contractual payment mechanism, for example, the dates for the giving of payment notices and pay less notices. For example, check what the contract provides where a key dates fall on a weekend or bank holiday.

  • Issue payment notices at agreed dates or intervals

Issue payment notices at the contractually agreed time otherwise they may be invalid. Check that any contractual payment schedule setting out dates for giving payment notices is sufficient to take account of any delay to the contractual completion date.

  • Payment notices must be clear and unambiguous

Case law[3] says that a payment notice (which for this purpose includes a payment application or a payment notice in response to a payment application) must be “in substance, form and intent an [application for payment or payment notice in response to a payment application] stating the sum considered by the Contractor as due at the relevant due date and it must be free from ambiguity … it must be clear that it is what it purports to be so that the parties know what to do about it and when”.

Comply with any requirements of the contract and, where applicable, the Construction Act regarding the form, content and method of communication of payment notices. Check whether any obligations regarding payment notices are hidden away in annexures to the Contract or in the Employer’s Requirements document (e.g. a requirement to provide supporting information or a VAT invoice).

Label the document clearly as a payment notice and avoid terminology which may be confusing or suggest that the payment notice is something else such as an ‘initial assessment’.

Slater Heelis’ Construction, Engineering and Projects Team has extensive experience advising contractors and professional consultants regarding payment issues.

Please contact us on 0161 672 1255 or get in touch with our Construction & Engineering team.

 

[1] Housing Grants, Construction and Regeneration Act 1996 as amended by the Local Democracy, Economic Development and Construction Act 2009

[2] Scheme for Construction Contract (England and Wales) Regulations 1998 (SI 1998/649)

[3] Akenhead J in Henia Investments Inc v Beck Interiors [2015] EWHC 2433

Why a simple will might not be enough!

Why a simple will might not be enough!

Having a will in place is essential.

Even by having in place a simple Will it enables you to do such things as choose your executors, the  guardians of any minor children surviving you and importantly to avoid the rules of intestacy, which are the rules that decide how your estate is divided in the event that you die without a will.

However, often a simple is just not enough.

If you have children from a previous relationship or vulnerable or disabled beneficiaries, a simple Will could result in those beneficiaries being left exposed or even worse, being left without any inheritance at all.  A simple will can provide little protection for your beneficiaries.

In addition to that, if you have been widowed or own a business or a share of a business, your will can be tailored to ensure that any eligible inheritance tax reliefs are captured. Simple wills tend not to be tailored to meet an individual’s particular needs.

If any of these circumstances apply to you then we would be delighted to meet you on a no obligation basis to discuss your circumstances and requirements.

Shared Parental Leave

Shared Parental Leave

Shared Parental Leave is the right afforded to parents to take time off following the birth or adoption of a child after a period of Maternity Leave has ended. The Government guidance confirms that to be eligible to take Shared Parental Leave, the employee must share responsibility for the child with one of the following; –

  • Their wife, civil partner or joint adopter
  • the child’s other parent
  • their partner (if the partner lives with the employee and the child)

Also, the employee or their partner must be eligible for maternity pay or leave, adoption pay or leave or Maternity Allowance and; –

  • have been employed continuously by the same employer for at least 26 weeks by the end of the 15th week before the due date (or by the date the employee is matched with the adopted child); and
  • stay with the same employer while taking Shared Parental Leave

Statutory pay for Shared Parental Leave is calculated by reference to Maternity Pay received and the timing and duration of the leave. However, and ever since the introduction of Shared Parental Leave, there have been debates as to how contractual enhancements to pay for Shared Parental Leave should be dealt with.  In particular it was unclear whether failing to contractually enhance pay for Shared Parental Leave in accordance with contractual enhanced Maternity Pay amounted to direct sex discrimination.   The EAT in the recent case of Capita v Ali cleared up the issue.

At first instance, the Tribunal in this case had concluded that following the initial two weeks of maternity leave, the purpose of maternity leave is childcare and that thereafter contractual enhancements to Maternity Pay and Shared Parental Leave pay should be the same.

However, the EAT decided that the purpose of maternity leave and pay is to protect the health and wellbeing of a woman during pregnancy and following childbirth. The level of pay is inextricably linked to the purpose of the leave. The EAT held that the father’s situation was not comparable to a woman on maternity leave.

The EAT went on to state that the purpose of shared parental leave is different from that of maternity leave and maternity pay and further went on to observe that shared parental leave is given on the same terms for both men and women.

It was on this basis that the EAT concluded that paying a higher level of maternity pay than pay which would be given to either sex on shared parental leave does not amount to direct sex discrimination. It was further held that payment of maternity pay at a higher rate did fall under s13(6)(b) of the Equality Act as special treatment afforded to a woman in connection with pregnancy or childbirth.

Applying for an extension of time for delay in Construction & Engineering projects – Top Tips

Applying for an extension of time for delay in Construction & Engineering projects – Top Tips

If you are unable to complete your works by the date for completion for reasons that are not your fault and not at your risk, you should be entitled to additional time beyond the originally agreed date or period for completion of the works. Such extension of time protects you from any claim for damages or liquidated damages for the delay. All the standard forms and a properly drawn-up bespoke form of contract will require you to give notice to your client or employer of your intention to claim an extension of time. Simple orders will not contain such requirements but the giving of notice is still best practice.  Here are our tips for pursuing an extension of time:

  1. Aim for clarity. A notice of delay should be clearly labelled, preferably refer to the contractual clause under which it is given and contain an unambiguous request for an extension of time and/or the fixing of a new completion date. Some standard forms of contracts, make it necessary to give ‘early warning’ of an event which might lead to delay, so that the project manager or contract administrator may consider what precautions or practical steps ought to be taken and what records kept.
  1. Record keeping is vital. Keep full and proper written records of all delays and effects: photos and videos are often compelling evidence.
  1. Comply with the Contract. Always have regard to and comply with all the contractual provisions as to the form, content, timing and manner of service of the notice. The notice may be required to be accompanied by further information, an updated programme, and the notice itself may have to be updated from time to time. Even in the absence of a contractual requirement, it is often advisable to comply, so far as possible, with any reasonable request for further information.
  1. The contract may require (and in any case the notice should set out) the reasons for the delay(s), the actual or anticipated effects of the delay(s) on the progress of the works and/or to the completion date, and if required or possible, details of the steps taken to prevent or minimise the delay(s). Sometimes it will be appropriate to specify the period of the extension of time that is required.
  1. The timing of the giving of notice is important. The contract may provide that notice is to be given “as soon as” or “immediately” the cause or fact of delay becomes apparent, or within a specific period of the happening of a delay event. If notice is not given in time the right to extension of time may be lost.
  1. In order to correctly format and issue a notice, you should seek the requirements stated in the contract provisions. In the absence of express provisions, the notice should be in writing, delivered to the opposite party at its usual or last known business address (or, in the case of an individual, his/her home address) and in the case of postal delivery by means which record the fact and date of delivery.
  1. The right to an extension of time may be lost if the appropriate notices and details required by the contract are not given in the right form and mode, at the right time and delivered to the right place. It may happen that parties waive the obligation for formal written notices in favour of a more pragmatic approach on site. This is not recommended but at the very least you should ensure that any information regarding delays are raised and recorded not just in your own records but at site meetings and included in the meeting minutes.
  1. It is unwise to ‘accelerate’ to avoid or recover delay without an instruction to do so. Even if the delay is your fault so that you have no entitlement to additional time and have a potential liability for liquidated damages, you should discuss any proposals with the other party first. It may, in appropriate cases, be possible to offer unpaid acceleration in return for the waiver of liquidated damages. In any case you will want to avoid any liability for disruption to others engaged on the works.

Slater Heelis’ Construction & Engineering Team has extensive experience advising employers, contractors, sub-contractors and professional consultants regarding issues concerning delay.

Please contact us on 0161 672 1255 or get in touch with our Construction & Engineering team.

 

When should an Enduring Power of Attorney be registered?

When should an Enduring Power of Attorney be registered?

We regularly receive enquiries from attorneys who are not sure whether or not they should register an Enduring Power of Attorney (EPA).

What is and EPA?

An EPA is a legal document made on or before 30th September 2007.  The person making the EPA (the donor) could appoint one or more people of their own choosing (their attorney(s)) to make decisions about financial affairs and property on their behalf.

What is the difference between an EPA and a Lasting Power of Attorney (LPA)?

A Property & Financial Affairs LPA will have been made on or after 1st October 2007.  In many ways a Property & Financial Affairs LPA  is similar to an EPA but a key difference  lies in when an EPA (as opposed to an LPA) should be registered with the Office of the Public Guardian (OPG).

Provided that the donor of an EPA hasn’t included a restriction saying that the EPA can only be used when they have lost mental capacity, the EPA can be used by the attorney(s) without it being registered with the OPG, for as long as the donor has the mental capacity to manage their property and financial affairs.

What happens if the donor of an EPA loses, or starts to lose, the mental capacity to manage their property and financial affairs?

At this point the attorney(s) have a duty to register the EPA with the OPG, and the EPA cannot be used at all until the application to register has been made.

Once the application to register has been made, an attorney has limited powers as follows:

  • To maintain the donor;
  • To maintain himself or herself or any other person if the donor might be expected to provide for the person’s needs; and
  • To prevent loss to the donor’s estate.

Example – Tony and Penny

Tony has made an EPA appointing his daughter Penny as his attorney.  His son, Eddie, lives with him and Bill supports him financially, paying for his food and household bills.   Tony has been diagnosed with Alzheimer’s disease and has reached the point where he can no longer deal with his finances himself.  The EPA has not been registered and Penny needs to access his bank accounts to buy food and pay essential bills for Tony and Eddie.  She is also concerned because the value of one of Tony’s shareholdings is falling and she needs to sell the shares as soon as possible.

Penny cannot use the EPA at all until she has applied to register the EPA.  However, once she has lodged the application Penny can use the EPA to maintain Tony and Eddie.  She can also sell the shares before they fall further in value to prevent loss to Tony’s estate.

What happens when the EPA has been registered?

Once the EPA has been registered, the attorney(s) have full use of it again.  So in the example given, Penny will once again have full powers to act as Tony’s attorney.

So when does a Property & Financial Affairs LPA need to be registered?

The regimes applying to the registration of EPAs and LPAs are very different.  An LPA can not be used at all until it has been registered.  Registration can take place regardless of whether the donor has experienced any loss of mental capacity.

 

Please do not hesitate to contact a member of the private client team on  if you have any questions, or would like us to assist with an application to register either an EPA or an LPA.

 

Increase to Basic Award

Increase to Basic Award

With effect from 6 April 2018, The Employment Rights (Increase of Limits) Order 2018 increased the rates for statutory redundancy pay, the basic award for unfair dismissal and the compensatory award for unfair dismissal as follows:-

Statutory Redundancy Pay

The previous cap of £489.00 on average weekly pay has been increased to £508.00. This will mean an increase to statutory redundancy pay.

Statutory redundancy pay is calculated by multiplying the lower of the employee’s average weekly wage and £508.00 by the number of full years of continuous employment with that employer up to a maximum of 20 years.   For each complete year of continuous service between the ages of 18 and 21, an employee is entitled to receive half a week’s pay.  The employee is entitled to receive one week’s pay  for each complete year of continuous service between the ages of 22 and 40 and for each complete year of continuous service between the ages of 41 and 65, the employee is entitled to receive 1½ weeks’ pay.   Given the increase in the average weekly wage to £508.00, the maximum statutory redundancy payment has also increased and is now at £15,240.00, which is calculated by multiplying £508.00 by 20 weeks and then by a factor of 1 ½.

Unfair Dismissal Basic Award

Again, the previous cap on average weekly pay used in calculating the basic award for unfair dismissal has been increased from £489.00 to £508.00. Therefore, given that the basic award for unfair dismissal is calculated in the same manner as a statutory redundancy payment, the maximum basic award that an Employment Tribunal may make for unfair dismissal is now £15,240.00 (i.e. 20 x £508.00 x 1.5).

In addition, the minimum basic award for dismissal on trade union, health & safety, occupational pension scheme trustee, employee representative, and working time grounds: increases from £5,970.00 to £6,203.00.

Unfair Dismissal Compensatory Award

Although the maximum weekly pay figure of £508.00 is not used by the Employment Tribunal to calculate the compensatory element of an award for unfair dismissal, this award is also subject to a maximum, which has been increased from £80,541.00 to £83,682 as of 6 April 2018.

Effect of the Change on Other Awards

As of 6 April 2018, the following awards will also be affected by the increased weekly pay cap; –

  • An award for failure to provide written statement of particulars of between 2-4 weeks pay, now capped at £508.00 per week:
  • An award for failure to adhere to an employee’s right to be accompanied of up to 2 weeks pay, now capped at £508.00 per week:
  • An award for failure to comply with the flexible working regulations of up to 8 weeks pay, now capped at £508.00 per week:
  • An award for failure to comply with a tribunal order to reinstate or re-engage the employee of 26-52 weeks pay maximum capped at £508.00 per week.

What is a Statutory Will and how do I apply for one?

What is a Statutory Will and how do I apply for one?

If it is deemed that a person does not have sufficient mental capacity to make a Will themselves, then that does not mean that no Will can be prepared. The Mental Capacity Act 2005 sets out the statutory scheme for the execution of a Will for the mentally incapacitated person. This scheme can be used if it is felt that any current Will or the rules governing where a person’s estate passes when there is no Will (called the rules of intestacy) are not providing for a person or charity that the mentally incapacitated person would, if they had capacity, make provision for. The procedure for a Statutory Will is set out in the Court of Protection Rules 2007 and allows for a person (usually a Court of Protection Deputy who is managing the finances for the mentally incapacitated individual) to apply for a Statutory Will to be made.

The rules confirm that supporting evidence is required to be put before the Court in the form of :

  • A copy of any current Will or Codicil
  • Confirmation of a current family tree
  • Evidence that the person does not have mental capacity
  • Proof of country of residence
  • Consents to act by proposed executors
  • Some explanation as to why the person may be expected to provide for the proposed beneficiaries put forward
  • Details of the current assets and outgoings
  • Details of any inheritance tax which is likely to be payable in the event of death
  • A copy of the new draft Will or if more appropriate a Codicil

The process can take some time and there could be objections from those who would inherit either under a current Will or under the rules of intestacy.

The team at Slater Heelis have made many successful applications and are able to offer expert advice on a potential application.

For further information contact our private client team on 0161 672 1242.

 

Break clauses: how to avoid the traps

Break clauses: how to avoid the traps

A large number of my clients are commercial tenants and following the financial earthquake that shook the nation in 2008, commercial tenants are adopting a more cautious approach by taking shorter leases.

Almost every client of mine also insists on a tenant break clause, the purpose of which is to allow a commercial tenant to exit the premises earlier than the termination date in the lease.

Almost all tenant break clauses I deal with are ‘conditional’ break clauses. They require pre-conditions to be complied with before the break clause can take effect. As such, great care and good drafting is required to ensure that the break conditions are reasonable and exercisable.

There has been a significant number of court cases on break clauses since 2010 and the upshot is break clause conditions are construed very strictly; it all depends on the literal construction/drafting of (1) the pre-conditions and (2) the break notice requirements. Failure to comply with the pre-conditions and/or serve the break notice correctly will invalidate the break clause.

Pre-conditions

Commonly, a landlord will request the following pre-conditions before the break date:

  • Payment of all rents due under the lease
  • Ensuring there are no breach of the repairing covenants in the lease
  • Ensuring that vacant possession is provided

These conditions are onerous and almost impossible to perform in their literal form. If there is any breach of a covenant, no matter how trivial, such breach will frustrate the right to break.

Payment of all rents will include all rents/sums even those sums which have not yet been demanded by the landlord.

‘Vacant possession’ has a very strict legal meaning which goes beyond a literal interpretation of the phrase. For example, failure to remove partitioning walls and two workman remaining on the property to carry out remediation works were both deemed as not providing vacant possession.

I would recommend that these conditions are either removed or altered substantially.

Break notice

In addition to complying with the pre-conditions, it is equally just as important that the correct break notice is given.  When is it given, where, how is it served and to whom is critically important.

The devil is in the detail and the detail should be contained in the lease. The lease should say what form the notice should take, who can serve it and when the notice must be served. Make sure you know who your current landlord is. Do not confuse the managing agents (who collect the rent) with your landlord.  Notice will be invalid if served on the wrong entity.

Check where the notice is to be served and when is it deemed served. Do not assume the notice is to be sent to the landlord’s registered office, this needs to be checked when drafting the lease.

Summary

With break clauses playing an increasingly important role in tenancy agreements, taking specialist legal advice before any agreement is signed can be worth its weight in gold. As a tenant, it is crucial you are aware of the exact terms and conditions you will need to satisfy should you wish to successfully execute a break clause.

As a specialist in commercial leases, I can advise on both break clauses included in existing lease agreements and the provision of clauses in new contracts, giving you greater protection and peace of mind.

You can call me on 0161 672 1426 or email hannah.al-shaghana@slaterheelis.co.uk

Q: My father has been diagnosed with aggressive Alzheimers Disease and my mum is struggling to cope with their finances as she has not dealt with them before. They never made any Powers of Attorney or Lasting Powers of Attorney and my friend says Social Services will have to deal with matters – is this correct?

Q:  My father has been diagnosed with aggressive Alzheimers Disease and my mum is struggling to cope with their finances as she has not dealt with them before.  They never made any Powers of Attorney or Lasting Powers of Attorney and my friend says Social Services will have to deal with matters – is this correct?

A: Although it is wise to make a Lasting Power of Attorney when you have full mental capacity so that if capacity is lost (such as in your father’s case it seems) there is someone appointed to look after their financial and property affairs and also now may be allowed to deal with Health & Welfare issues as well.

However, all is not lost and your friend is not correct in saying Social Services will have to deal with matters. Any person of full age and capacity can apply to the Court of Protection to become what is called a Deputy to manage the affairs of another person in such circumstances.  In a family, like yours, it would be sensible for perhaps you or another sibling to consider applying to the Court of Protection, particularly because it sounds as if your mother may struggle anyway.  I am sure if the family discuss it, an agreement can be reached as to what is best for your father – which is the important factor.  Speak to your solicitor for further advice and help.

The end of Smash & Grab adjudications?

The end of Smash & Grab adjudications?

Will Mr Justice Coulson’s TCC swan song in the case of Grove Developments Limited v S&T (UK) Limited [2018] EWHC 123 (TCC) signal the end of so-called “smash and grab” adjudications? Here we consider the potential impact of this case in disputes concerning a paying party’s failure to submit a valid pay less notice under a building contract.

Facts

The claimant (Grove) employed the defendant contractor (S&T) to design and build a Premier Inn at Heathrow T4 under a JCT Design and Build Contract 2011.

There were three adjudications. The first decided that a Schedule of Amendments was a valid part of the contract; the second decided that S&T were entitled to a partial extension of time; and the third decided that Grove’s pay less notice was invalid. This third decision meant that S&T were potentially entitled to be paid £14m pursuant to an interim application. Anticipating this possible outcome Grove had issued Part 8 court proceedings whilst S&T sought enforcement of the third decision.

The proceedings raised 4 issues.

  1. Whether Grove’s pay less notice complied with the contract.
  2. Whether, even if the pay less notice complied with the contract, the third decision should still be enforced.
  3. Whether in principle Grove was entitled to commence a separate adjudication as to the “true” value of interim application 22.
  4. Whether Grove’s notices in respect of liquidated damages were properly issued. This note does not cover the fourth issue.

Issue (1) – The validity of the pay less notice

The pay less notice was to be construed in a similar way to the underlying contract. It was to be approached objectively, taking into account the objective contextual scene: how would a reasonable recipient have understood it? One way of testing it was to ask whether the notice provide an adequate agenda for a dispute about valuation and to any cross claims available to the employer?

A pay less notice was not to be construed more generously than a contractor’s application/payment notice. But the adverse consequences which follow a defective pay less notice were relevant to the test of the reasonable recipient. In the case of a payment notice/application would the recipient have realised the document was an application or payment notice with contractual force, and all the consequences that may entail?

The guidelines applied equally to a payment notice and pay less notice; each must make plain what it is; clearly set out the sum said to be due and / or to be deducted, and the basis on which that sum is calculated.

The court concluded the pay less notice was valid. It did properly set out the basis of calculation by reference to a detailed calculation sent 5 days before the pay less notice with a purported payment notice. There were detailed figures for every element of the works and it satisfied the test of providing a detailed agenda for valuation. There could be no possible objection in principle to a notice referring to a detailed calculation set out in another, clearly-identified document. The fact that the document was not reattached to the pay less notice did not matter. There was nothing in the contract requiring it be re-sent. It was clear what was being referred to and it was incorporated by reference.

The court pointed out that a party who relies on incorporation by reference without re-sending the document takes risks that something may go wrong with technology or the mode of delivery of the first document.

Issue (2): Should the decision in Adjudication 3 be enforced anyway?

Adjudication 1 had decided that the Schedule of Amendments applied. That decision was and remained binding on the parties. This meant the pay less notice was served in time.

The court’s findings on Issues (1) and (2) meant that the decision in Adjudication 3 was wrong and could not be enforced.

Issue (3): Did the employer have the right to adjudicate the ‘true’ value?

The court had to consider whether, in circumstances where it had been decided in a first “smash and grab” adjudication that a party must pay the sum due in an interim application, that paying party could commence a second adjudication to decide the “true” value of the work.

The court held that there were 6 reasons why the employer could adjudicate to decide the true value of the interim certificate:

  • A judgment of Dyson LJ (as he then was) in the Court of Appeal[1] was authority for the proposition that the court could decide the ‘true’ value of any certificate, notice or application and as part of that process open up review and revise the same. An adjudicator has the same wide powers as the court to decide the “true” value of an interim certificate.
  • There is no limitation on the nature, scope and extent of the dispute which either side can refer to an adjudicator in either s.108 of the Act[2] or paragraph 20 of the Scheme[3].
  • The dispute in the second adjudication as to the true value would be a different dispute from the first adjudication about the absence or validity of a payment or pay less notice.
  • The words “the sum due” in Clause 4.7 of the JCT contract in question is part of the contractual mechanism designed to calculate the precise entitlement (the “true” value). This is very different from the “sum stated to be due” or “stated as due” in Clause 4.9 which identifies the sum payable under a valid notice.
  • As a matter of general principle, the employer can refer the dispute about the true valuation to adjudication, once he has paid the sum stated to be due. Nothing in the Act, Scheme or contract prevented the employer doing what the contractor could do: attacking the sum stated as due in a notice.
  • Nothing in sections 110A, section 110B and section 111 of the Act, drew any distinction between an interim and a final certificate. They applied to both. Thus whether what was in dispute was an interim or final payment, the employer had the right in principle to refer to adjudication a dispute about the ‘true’ value.

It was then necessary to review existing authorities to see if they compelled a different conclusion. On the face of it the very question now raised was answered by Jacob LJ in Rupert Morgan[4] when he said that although in the absence of a withholding notice the employer had to pay the sum certified, that did not preclude the employer “from subsequently showing he was overpaid. If he is overpaid on an interim certificate the matter can be put right in subsequent certificates. Otherwise he can raise the matter by way of adjudication or if necessary arbitration of legal proceedings.” Rupert Morgan was binding and made good sense.

The court considered two previous decisions in which Edwards-Stuart J “took a different line” and found itself unable to follow them. In so doing Mr Justice Coulson observed that the value should not be deemed to be agreed merely by virtue of the absence of an effective payment or pay less notice.

Thus 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 but was then free to commence adjudication proceedings to dispute that the sum paid was the “true” value of the works for which the contractor had claimed.

Comment:

This decision limits the time effects of so called “smash and grab” adjudications. An employer who loses a “smash and grab” and pays up can in principle immediately adjudicate the true value of an interim as well as final payment application. In an appropriate case, the employer might seek a stay of execution in relation to enforcement of the “smash and grab” decision in the meanwhile.

Mr Justice Coulson said that his decision in this case “will strengthen the system, because it will reduce the number of ‘smash and grab claims; which, in my view, have brought adjudication into a certain amount of disrepute”. A contractor may therefore still see merit in commencing a “smash and grab” to use the adjudicator’s decision as leverage for resolution of any wider valuation dispute and to assist its cash flow.

The reference to the judgment of Jacob LJ in Rupert Morgan is interesting for another reason. It will be recalled that Jacob LJ said an overpayment could (also) be put right in a subsequent certificate. If the true value can be adjudicated why can it not be adjusted by the employer in a subsequent certificate? This question remains hanging in the air, for now.

[1] Henry Boot Construction Ltd v Asltom Combined Cycles Ltd [2005] 1 WLR 3850 at paragraph 23

[2] Housing Grants, Construction and Regeneration Act 1996, as amended by the Local Democracy, Economic Development and Construction Act 2009

[3] Scheme for Construction Contracts (England & Wales) Regulations 1998 (SI 1998/649) as amended by the Scheme for Construction Contracts (England & Wales) (Amendment) (England) Regulations 2011 (SI 2011/2333)

[4] Rupert Morgan Building Services (Llc) Ltd. v Jervis & Anor [2003] EWCA Civ 1563