subcontractors. It was thus likely that evidence of content and value of work would
be needed.
If the condition was operable, the next question was whether the condition’s precedents were satisfied. There were multiple sub-elements. There was the
question of timing. It was in dispute whether the requirement of clause 21.4 that the
sub-subcontracts be provided within 7 days was part of the condition precedent;
that would be a matter of pleading and argument. What would happen if
compliance was one day late? Did that mean no payment was due for any work at
all?
The various elements required properly particularised claims and responses.
Then there was the question as to whether IPS had actually complied with the
conditions. Some of the material before the court suggested that professional
indemnity insurances were not required from at least two sub-subcontractors who
had no design responsibility.
The allegations made in the adjudication were not all the same as those advanced
before the court. A properly particularised claim was required.
The question of compatibility between the subcontract and sub-subcontracts
would, if pursued, require factual analysis.
The question of waiver was very likely to involve evidence of previous payments and
practice. It did not follow that previously decided cases in which it was said payment
was equivocal would apply. IPS contended those cases could be distinguished as
being based on payment notices and payment practice, whereas here IPS relied on
the fact of payment on previous occasions as unilateral waiver. Only once any
breaches had been identified would it be possible to determine whether there was
a waiver.
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