Second Chances – Adjudication Update

16 January, 2017
by: Cripps Pemberton Greenish

Further to my blog on 23 December 2016 (see https://www.crippspg.co.uk/construction-matters/25458/) the recent 2016 case that confirms an employer can bring a second adjudication to seek a declaration of the true final account figure (even if an earlier adjudication has determined that an employer must pay the full amount in a contractor’s final account application, due to the employer or its agents failing to provide a payment notice or pay less notice) has been applied in another case [1], this time with an NEC building contract.

In the present case, the sub-contractor commenced an adjudication for full payment of an interim application on the basis that the contractor had failed to serve any valid payment notice or pay less notice.  Full payment was awarded by the adjudicator.

Eleven months later the contractor issued a payment notice and pay less notice despite the sub-contractor having not initiated an interim payment cycle by submitting a payment application.  An adjudication was then commenced by the contractor to assess the proper sum due under the sub-contract as at the date of the contractor’s latest payment notice and pay less notice.

The sub-contractor disputed that the second adjudicator had jurisdiction on the basis that he was asked to answer the same dispute that had already been decided by the first adjudicator.  The TCC disagreed as the valuation was up to a different date, which ultimately was a date after a defects certificate had been issued confirming that there were no defects in the completed sub-contract works.  This opened up the ability for the second adjudicator to decide on the correct value of the sub-contract works.

 

1 Universal Piling & Construction Ltd v VG Clements Ltd [2016] EWHC 3321 (TCC)