Mr Rayner decided there was no PLN and found Henry liable to pay the sum claimed. They
made payment to Alu-Fix, whereupon Mr Molloy proceeded with the TVA, finding in favour
of Henry.
The issue before the court was one on which there was no direct authority: could a paying party
commence a TVA where the question of its liability to make the payment claimed due was
genuinely disputed and had yet to be determined in an existing SGA?
The court referred to the decisions of • O'Farrell J in the recent case of Bexheat v Essex Services Group 6 , • Jackson LJ in Grove Developments Ltd v S&T (UK) Ltd 7 , and • Stuart-Smith J (as he then was) in M Davenport Builders Ltd v Greer 8
from which it derived the following principles:
- Where a valid payment application was made, and no payment application or PLN was
given, the payer was obliged to pay the notified sum by the final date for payment (s111
of the Act).
- If payment was not made, the payee was entitled to seek an adjudication award in its
favour.
- Where a party was required to pay the notified sum by reason of its failure to serve a
payment notice or PLN, it was entitled to embark upon a 'true value' adjudication in
respect of that sum but only after it had complied with its immediate payment obligation
under s111 of the Act.
- It was clear that the payer became free to commence a true value adjudication when
(and only when) he had paid the sum ordered to be paid by the earlier adjudication.
Henry’s case Henry argued that this case differed from those previously decided, in that at the time of
commencement of the TVA there was an ongoing "genuine dispute" as to the validity of the
PLN. Thus, unless and until there was an adjudication decision that there was no valid PLN,
no "immediate payment obligation" arose or subsisted. The embargo upon launching a TVA
6 [2022] EWHC 936 (TCC).
7 [2018] EWCA Civ 2448, (2018) 181 ConLR 66, [2019] Bus LR 1847 . 8 [2019]EWHC 318 (TCC), [2019] Bus LR 1273, [2019] BLR 241.
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