The impact of Smash & Grab adjudications
Has this been reduced by the Technology & Construction Court in M Davenport Builders v Colin and Julia Greer (2019)?
The Court of Appeal’s decision in S&T v Grove (2018) caused some controversy in the construction industry, providing as it did that any smash and grab adjudication award must be paid before an Employer could begin a true value adjudication seeking to rectify any potential overpayment created by the smash and grab adjudication – generated of course by the Employer’s own failure to provide an appropriate pay less notice.
In this latest case from the Technology & Construction Court, it was found that an adjudicator’s decision produced as a result of an adjudication issued before payment of the smash & grab decision was valid; but could not be relied on by the Employer until they had paid the smash & grab award.
So, it would seem from this that the true value adjudication can be issued before payment, but not relied on before payment, which would appear to mitigate against the timescale when the Employer will be out of pocket. If the timeframe is slight – which given the 28-day process it might be; then is there any point in a contractor seeking to enforce a smash & grab award?
It would follow from this that the industry may well be seeing a rise in true value adjudications being issued more promptly by Employers, or potentially less smash & grab adjudications in the first place.
If you or your business is currently facing an adjudication or would like advice on how to bring one and would like our assistance, please do not hesitate to get in touch.
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