KERSFIELD DEVELOPMENTS (BRIDGE ROAD) LTD v BRAY AND SLAUGHTER LTD

[2017] EWHC 15 (TCC), Technology and Construction Court, O'Farrell J, 18 January 2017

Adjudication - Validity of interim payment notice and pay less notice - Procedural unfairness

The defendant agreed to carry out the refurbishment and conversion of a mansion house and stables in Somerset, together with the construction of some detached houses. The contract incorporated the JCT Design and Build Contract (2011 edition) as amended by the parties. On 5 August 2016 the defendant issued an interim application for payment for £1,208,279.39 exclusive of VAT. The claimant failed to pay the sum by the applicable date, namely 19 August. The defendant commenced adjudication in order to recover the sum unpaid. The defendant claimed payment in full whereas the claimant denied liability on the ground that the interim payment notice sent by the defendant was invalid and a valid pay less notice had been sent by the claimant. The adjudicator decided that the interim payment notice was valid and that no valid pay less notice had been given by the claimant. He therefore ordered the claimant to pay to the defendant £1,131,751.96 plus VAT and interest and to pay the adjudicator's fees and expenses. The defendant sought to enforce the decision of the adjudicator but the claimant resisted enforcement and sought a declaration that it was entitled to have the underlying valuation dispute referred to and determined in another adjudication.