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 EWHC 123 (TCC), Technology and Construction Court, Coulson J, 27 February 2018
Validity of pay less notice – Understanding of the reasonable recipient – If notice deficient, whether party issuing notice entitled to commence a separate adjudication seeking a decision as to the "true" value of the interim application
Two principal issues arose on the facts of the case. The first was whether the claimant's pay less notice complied with the requirements of the contract. The adjudicator held that it did not because the notice had not incorporated the basis of the claimant's assessment, which had been sent to the defendant five days previously. Coulson J stated that the interpretation of pay less notices must be approached objectively and that the important question to answer was how a reasonable recipient would have understood the notice. He also added that the court would be "unimpressed by nice points of textual analysis" and that one way of "testing to see whether the contents of the notice are adequate is to see if the notice provides an adequate agenda for a dispute about valuation and/or any cross-claims available to the employer".
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