We probably all have our own thoughts on this. Due to public’s interest, the SCL and TECBAR hosted a fantastic event this evening with Counsel for each party making persuasive submissions in this topic. We all then had to vote on who should have won S&T (the payee) or Grove (the payer).
For those who need reminding, the TCC and Court of Appeal agreed that where a payer loses a “smash and grab” adjudication in an interim payment notice, the payer may adjudicate (or use another type of dispute resolution method) the true value of the interim payment notice in dispute PROVIDED that it pays the smash and grab adjudicator’s decision first.
In reality, the lower courts found Grove’s pay less notice was valid. We therefore had to assume a factual scenario where Grove’s pay less notice was not valid to simplify the issues to be decided.
Whilst I would not want to steal the SCL’s and TECBAR’s thunder in revealing the outcome, I can comment on a key take away point:
Payment notice provisions and valuation provisions are treated separately in JCT Contracts with no express provisions on what to when there is an interim value dispute and the payer has failed to serve its payment notice or pay less notice on time. Employers/Main Contractors/payers under construction contracts should therefore give careful consideration to amending the payment and valuation provisions in JCT Contracts for interim balancing acts (like NEC).
The SCL and TECBAR videoed the event live if you would like to hear the submissions and see the live vote!