S&T (UK) LTD v GROVE DEVELOPMENTS LTD

UKSC 2018/0222, Supreme Court Permission to Appeal, Lord Wilson, Lord Lloyd-Jones and Lord Sales, 22 May 2019

Validity of pay less notice – 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

The Supreme Court has given the contractor leave to appeal against the decision of the Court of Appeal ([2018] EWCA Civ 2448). The Court of Appeal held that a pay less notice issued by the claimant employer was not deficient despite the fact that information was contained in a document previously sent to the defendant contractor. In each case it is a question of fact and degree whether the purported pay less notice achieved the requisite degree of specificity. More importantly, the Court of Appeal held, on the assumption that the pay less notice was deficient, that the claimant employer was entitled to commence a separate adjudication seeking a decision as to the true value of the interim application for payment which had been the subject of the earlier adjudication provided that it had first paid the notified sum to the contractor. Finally, the Court of Appeal held that the notices served by the claimant employer were sufficient to entitle it to deduct or recover liquidated damages for delay.