“Further to the Stepnell final account projection submitted on21st February 2022 under the heading (Valuation 35A), (“Valuation 36”) submitted28th February 2022 and in consideration of the points within this letter we find the final account figure to be£7,988,593.74 ex VAT.”
“47. In summary, the approach to be taken by the court as gleaned from these authorities is as follows: i) In considering the true construction of a contractual notice (including notices under the payment regime in the Act – see Grove Developments per Coulson J at [21]-[22] and S&T in the Court of Appeal at [58] per Sir Rupert Jackson), the question is not how its recipient in fact understood it. Instead “the construction of the notices must be approached objectively. The issue is how a reasonable recipient would have understood the notices”, i.e. a reasonable recipient “circumstanced as the actual parties were” (see Mannai at 767 G-H and 768B-C per Lord Steyn). ii) The notice must be construed taking into account the “relevant objective contextual scene”, i.e. the court must consider “what meanings the language read against the contextual scene will let in” (see Mannai at 767H and 768A-B). This means that, amongst other things, the reasonable recipient will be credited with knowledge of the relevant contract (see Mannai at 768B-C). iii) The purpose of the notice will be relevant to its construction and validity (Mannai at 768E). iv) The court will be “unimpressed by nice points of textual analysis or arguments which seek to condemn the notice on an artificial or contrived basis” (Thomas Vale per HHJ Kirkham at [43]; Grove at [26]). Instead, as Sir Peter Coulson says in paragraph 3.36 of his book on Construction Adjudication (4th ed. 2018), focusing specifically on Pay Less Notices: “The courts will take a commonsense, practical view of the contents of a payless notice and will not adopt an unnecessarily restrictive interpretation of such a notice…It is thought that, provided that the notice makes tolerably clear what is being held and why, the court will not strive to intervene or endeavour to find reasons that would render such a notice invalid or ineffective”. v) There is no principled reason for adopting a different approach to construction in respect of different kinds of payment notices ... However: “the particularly adverse consequences for an employer that follow from, say, a contractor’s unanswered application/payment notice are relevant to the test of the reasonable recipient”. vi) To qualify as a valid notice, any payment notice must comply with the statutory (and, if more restrictive, the contractual) requirements in substance and form (Henia per Akenhead J at [17]). Payment notices and Pay Less Notices must clearly set out the sum which is due and/or to be deducted and the basis on which the sum is calculated. Beyond that, the question of whether a notice is or is not a valid notice is “a question of fact and degree” (Grove at [29] and S&T at [53]). vii) Over and above the question of whether a notice has achieved the required degree of specificity, will be the additional question of whether the document that is alleged to constitute a valid notice was in fact intended to be such and whether it is “free from ambiguity” (Henia at [17] and Grove at [42]). The sender’s intention is a matter to be assessed objectively taking into account the context. (Jawaby at [43], [59] and [63]). viii) Although in Grove, Coulson J observed that payment notices must make plain what they are, there is no requirement for a particular type of notice, such as a Pay Less Notice, to have that title or to make specific reference to the contractual clause in order to be valid: “[t]he question is whether, viewed objectively, it had the requisite intention to fulfil that function” (Surrey & Sussex at [65]). ix) One way of testing the validity or otherwise of a Pay Less Notice will be to see whether it “provided an adequate agenda for an adjudication as to the true value of the Works…” (Henia at [32] and Grove at [26]).” i) In considering the true construction of a contractual notice (including notices under the payment regime in the Act – see Grove Developments per Coulson J at [21]-[22] and S&T in the Court of Appeal at [58] per Sir Rupert Jackson), the question is not how its recipient in fact understood it. Instead “the construction of the notices must be approached objectively. The issue is how a reasonable recipient would have understood the notices”, i.e. a reasonable recipient “circumstanced as the actual parties were” (see Mannai at 767 G-H and 768B-C per Lord Steyn). iii) The purpose of the notice will be relevant to its construction and validity (Mannai at 768E). iv) The court will be “unimpressed by nice points of textual analysis or arguments which seek to condemn the notice on an artificial or contrived basis” (Thomas Vale per HHJ Kirkham at [43]; Grove at [26]). Instead, as Sir Peter Coulson says in paragraph 3.36 of his book on Construction Adjudication (4th ed. 2018), focusing specifically on Pay Less Notices: “The courts will take a commonsense, practical view of the contents of a payless notice and will not adopt an unnecessarily restrictive interpretation of such a notice…It is thought that, provided that the notice makes tolerably clear what is being held and why, the court will not strive to intervene or endeavour to find reasons that would render such a notice invalid or ineffective”. v) There is no principled reason for adopting a different approach to construction in respect of different kinds of payment notices ... However: “the particularly adverse consequences for an employer that follow from, say, a contractor’s unanswered application/payment notice are relevant to the test of the reasonable recipient”. vi) To qualify as a valid notice, any payment notice must comply with the statutory (and, if more restrictive, the contractual) requirements in substance and form (Henia per Akenhead J at [17]). Payment notices and Pay Less Notices must clearly set out the sum which is due and/or to be deducted and the basis on which the sum is calculated. Beyond that, the question of whether a notice is or is not a valid notice is “a question of fact and degree” (Grove at [29] and S&T at [53]). vii) Over and above the question of whether a notice has achieved the required degree of specificity, will be the additional question of whether the document that is alleged to constitute a valid notice was in fact intended to be such and whether it is “free from ambiguity” (Henia at [17] and Grove at [42]). The sender’s intention is a matter to be assessed objectively taking into account the context. (Jawaby at [43], [59] and [63]). viii) Although in Grove, Coulson J observed that payment notices must make plain what they are, there is no requirement for a particular type of notice, such as a Pay Less Notice, to have that title or to make specific reference to the contractual clause in order to be valid: “[t]he question is whether, viewed objectively, it had the requisite intention to fulfil that function” (Surrey & Sussex at [65]). ix) One way of testing the validity or otherwise of a Pay Less Notice will be to see whether it “provided an adequate agenda for an adjudication as to the true value of the Works…” (Henia at [32] and Grove at [26]).”
“(i) At paragraph 1A “Introduction” that: “This report is written in response to various claims made by Stepnell Limited within documents titled “Wantage Care Home Val 35 Rev A16 February 2022 with updated final account projection” (provided17 February 2022 )” (ii) At paragraph 8, “Conclusion” that “Further to the Stepnell final account projection submitted on21 February 2022 under the heading of Valuation 35.A .. we find the final account figure to be£7,988,593.74 ex VAT.”
“(i) It was in the form of previous interim applications; (ii) It was expressly headed “draft FA” demonstrating that it was a draft and not a finalised statement of final account; (iii) The column setting out the breakdown was headed “Forecast of the FA”, also demonstrating (in the context of the final account) the draft/forecast nature of the figure presented; (iv) Various items in the build-up of “others” below item 61 were stated as being provisional or subject to further review or assessment by Stepnell: (a) the amount for “out of sequence planting and maintenance” is “TBA”; (b) “change to elevations” is described as “budget” that is referenced in item 2 of the covering email of17 February 2022 stating “Budget figure of 150k for the changes to the elevations and the roof plans (we will be submitting details of the remeasures and increase in Valu [sic] in the next week or so”
“ “Conclusive evidence” clauses have a clear commercial purpose. They are intended to provide contractually agreed limits to the scope of disputes and to provide clarity as the parties’ obligations once a project is complete. They allow the parties to dictate if and to what extent a final certificate is and is not to be treated as conclusive between them.”
“Anyone familiar with the myriad JCT forms of contract will know that one of the things they all have in common is the intention to ensure that, after the works have been completed, any outstanding disputes between the parties can be swiftly and finally resolved.”
“Standing back, I consider this outcome strikes the right balance between, on the one hand, recognising the benefits of a conclusive evidence provision (see Mark Gilbard at [9]) and, on the other hand, allowing a true value of the works to be undertaken and paid for on the other. BPS had known that the Final Sub-Contract Sum was in dispute even before the Final Payment Notice was issued. In accordance with clause 1.8.2, QFS had challenged the Final Payment Notice within time. From that moment, BPS will have understood that it could not, by that short cut, obviate the need for the parties to investigate the true value of the account. That exercise was duly undertaken by the adjudicator.”
“Except to the extent that prior to the Due Date for the Final Payment the Employer gives notice to the Contractor disputing anything in the Final Statement or the Contractor gives notice to the Employer disputing anything in the Employer’s Final Statement and subject to clause 1.8.2 the relevant statement shall upon the Due Date become conclusive …”