Judgment
The result said the Employer was that the Contractor was no longer able to rely on Interim Payment Application 34 as originally formulated (i.e. on a "smash and grab" basis) but only as to the amount identified by the adjudicator. The Contractor said Payment Notice 34 was invalid because it failed to satisfy the requirements of section 110A (2)(a) of the Act and clause 4.10.1 of the Contract. The Decision, it said, was enforceable in its entirety. Alternatively, if it was not enforceable, it was not enforceable in part as argued by the Employer. The effect of the Decision not being enforceable was that there was no valid Payment Notice and no enforceable adjudication Decision with the consequence that the notified sumwas the amount set out in Interim Application 34 and that the Employer was required by section 111 (1) of the Act to pay that sum. It even went so far as to say that the Employer was obliged to pay that sum even if the Decision was enforceable and that the Employer's redress after having paid that sum was then to seek to recover any overpayment.
The validity of Payment Notice 34
It was a requirement of the Act and the Contract that a Payment Notice set out the sum which the Employer considered due at the payment due date and the basis on which that figure was calculated. It could not be credibly contended that Payment Notice 34 provided ‘an agenda for adjudication’. It set out no basis for the assertion that the gross valuation was increased by £1; there was no material on which the validity of that assertion could be assessed. It was to be contrasted with Payment Notice 34a. Not only did that latter notice put forward a markedly larger figure but it was accompanied by detailed calculations showing how the figure was arrived at. It was significant that Payment Notice 34a in fact provided an agenda for the adjudication and that the adjudicator's approach to the figures involved an analysis of the sums advanced by the Contractor by reference to particular headings which were substantially those which appeared in the material accompanying Payment Notice 34a.
The issues thus were:
i) The validity or otherwise of Payment Notice 34.
That exercise would not have been possible using Payment Notice 34 alone.
ii) The enforceability of the adjudicator's decision that the sum payable was £103,836.98 with no account being taken of the capping beam cross- claim. iii) The effect of the adjudication on the parties' rights and obligations in respect of Interim Application 34.
Payment Notice No 34 did not set out the amount which the Employer actually considered to be due. It was not necessary to show the Employer was acting in bad faith but equally it could not be said that the notice stated the sum that Employer genuinely considered to be due. Payment Notice 34 was invalid and ineffective.
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