In its absence they did not intend an impractical and unworkable solution and the result was to leave the date for submission of the claim (for payment) at large. The words "end of the month" were best seen in context as pertaining to the period for the application rather than as a condition precedent to the entitlement to make a claim for the period. This was not a “throwing‐out” of the parties' agreement, but an interpretation of it, which balanced respect for their words with contractual certainty and fairness. What then was missing? It was common ground that the parties had not stated a date when payment became due. Therefore it was impossible to know the final date for payment. Under paragraph 4 of the Scheme payment became due on the later of (1) The expiry of seven days from the “relevant period”, or (2) The making of a claim by the other paying party. On the basis, as found, that Kilhan was not pegged to the final day of the month for making the application, it followed that this regime came into effect, and that the due date in this case was, as the adjudicator found, 20 May 2019, the date on which the claim was issued. The final date for payment. On the facts of the case, pegging the final date to service of an invoice, which was itself pegged to a payment certificate, was simply impractical. The best way of mending the misfire caused by the parties' incomplete drafting of the contractual documents, was to have regard to the Scheme. Had the court had to decide the point on the law, it would “with some diffidence” have accepted that section 110 required a final date
Rochford initially refused to pay and Kilhan brought part 7 proceedings to enforce the award. Rochford paid before that application was heard and then issued a part 8 application to determine the above issues. The court confirmed as Rochford contended, both from the wording of the Act, and from the authorities, that a piecemeal incorporation of the Scheme's provisions was possible to the extent necessary to achieve compliance with the Act[14]. The Act contains certain minimum provisions as to payment which every contract must contain. Rochford’s complaint about the adjudication, was that adjudicator did not, but the court should, give effect to the express terms of the subcontract requiring Kilhan to issue its Interim Payment Applications on the last day of each month; and that the final date for payment was to be fixed by reference to Kilhan's service of its invoice.
The subcontract said:
“S/C payment cert must be issued with invoice” . But there was no separate provision for issuing an invoice.
It also said:
“payment terms thirty days from invoice as per attached payment schedule” and “valuation monthly as per attached payment schedule end of month” .But no payment schedule was produced. The court concluded that parties intended claims, invoices and payment certificates to be submitted as per the payment schedule.
[14] Coulson LJ in Bennett (Construction) Ltd v CMC MBS Limited [2019] EWCA Civ 1515
Made with FlippingBook - Online Brochure Maker