Compliance with payment dates in payment schedule
In the case of A&V Building Solutions Limited v J & B Hopkins Limited [2022] EWHC 1186 (TCC), AVB and JBH had entered into a contract which contained an accompanying payment schedule. This schedule stated that applications had to be submitted aon a particular date in each month.
As usual, you can guess what happened. AVB sent to JBH its application No. 14 on 22 March 2022. This was a Monday with the specified date being the day before, the Sunday.
Following this application, the parties negotiated the detail of it; however some time later JBH’s solicitor’s stated the application was invalid as it had been issued too late.
The matter proceeded to adjudication and the adjudicator decided that the application 14 was valid.
However. at Part 8 proceedings, the Judge found that a valid payment application could only be made on the specific date set out in the payment schedule. The Judge also rejected the argument of waived by JBH by reference to a previous application.
At the first tier court proceedings, the judge stated that application 14 was not valid as it had been issued one day late; that Payment Notice 14 was valid, and a declaration that AVB were not entitled to payment.
In the meantime, there was a second adjudication, commenced by AVB for its final account. However the adjudicator disagreed with AVB and decided that it had previously been over-paid.
At the second tier court proceedings, the judge stated the first tier proceedings judgement was correct, that application 14 was not valid – as it had been issued a day late.
The message is simple, if you have a payment schedule – make sure you comply exactly with it – or risk any entitlement.
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