O rder
1. The Employer was entitled to a declaration that the Decision was unenforceable. In consequence it was not open to the Contractor to threaten to suspend works by reason of a failure to pay the sum directed in the Decision. The court’s current view was that there was no need for a declaration to that effect. 2. The Contractor was entitled to a declaration that Payment Notice 34 was invalid. There was no issue as to the invalidity of Payment Notice 34a thus a declaration did not seem to be necessary in that regard. 3. The court declined to address other matters not currently in issue as to the entitlement which the Contractor might or might not retain in relation to Payment Application 34. Comment This case raises issues that may be encountered in practice though perhaps not in the form and circumstances they materialised here. If a payment notice is ineffective then the amount applied for in a valid payment application becomes the notified sum due for payment. If the contractor instead of pursuing that entitlement asks an adjudicator to value the application, a valid assessment will supercede the application and decide the sum due. Absent a valid decision, the notified sum remains the sum due and the contractor retains that entitlement pending a true value adjudication, and subject possibly to a later contractual valuation. The dispute based on the payment application could still be adjudicated. There is presumably little surprise in the finding that a Payment Notice setting an artificial nominal value is of no effect. The refinement of existing case law on the subject of severance is welcome and tends to bring the law in England and Wales and in Scotland into line in that regard.
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