application or an invoice (110(1)(a)); the latter , the “final date for payment”, must be a period certain from the due date and cannot be set by reference to an event (such as the date of an
employer inspection or submission of an invoice (110(1)(b)).
3. Additional requirements for a valid payment application including having to state milestones
already achieved, providing photographs to show the stage of the works, evidence of insurances and ‘such information as may be required’, were not expressed as conditions precedent to payment and their absence did not mean the payment application was invalid though it might
justify a reduction in the sum due.
4. Neither, on the terms of the contract, was the requirement for an invoice to be accompanied by
a copy payment application, a condition precedent to payment.
5. Provisions requiring ‘notices’ and ‘requests’ to be given by email and in writing did not apply to payment applications, which were neither ‘notices’ nor , in the terms of the provisions used, ‘requests’ .
6. In the alternative to the above findings (that the provisions in question were not conditions
precedent to payment), the court would have found there was an estoppel by convention
preventing Lidl from relying upon non-compliance (given that a previous application without such supporting material had been paid without demur). A ‘no waiver’ clause in the framework
agreement did not apply to estoppel by convention so as to allow Lidl to refuse payment for
non-compliance.
7. A payer’s notice entitled as a pay less notice (PLN) and purporting to deduct liquidated damages as well as sums for defective work was in form and intent a PLN not a payment notice. Since
the amendment to the Act in 2011 it was no longer possible to have a hybrid combined payment
and PLN - separate notices were required.
Unconscious bias – Deployment of without prejudice materials AZ v BY [2023] EWHC 2388 (TCC), Constable J., judgment 27 September 2023 The underlying dispute arose out of works to replace the core pressurisation systems to a Building. The
contract for the works was intended to be let to AZ. An issue in the adjudication was whether a contract
was finalised between the parties. In support of the contention, AZ introduced without prejudice (WP)
materials to persuade the adjudicator (P) that there was a finalised contract. P so determined there was
a finalised contract.
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