The claimant, Thomas Vale, sought a declaration that a withholding notice was invalid. The contract was a JCT Standard Form of Building Contract with Contractor’s Design 1998 edition incorporating amendments 1-5 and further amendments set out in the employer’s requirements. The works comprised the construction of 24 apartments. A dispute arose as to the date of completion, and both parties made claims against each other. Cross-adjudications were commenced. In April 2006, the parties resolved some of their differences in a written supplemental agreement. Clause 7 provided: “Neither party shall be obliged to make any payment to the other, whether by way of payment for the works, damages for late completion or the release of retention until such time as the final account is either agreed between the parties or determined pursuant to the building contract.”

The supplemental agreement also provided for an expert to determine the date for practical completion and the outstanding snagging works. The appointed expert concluded that practical completion was achieved on 22 May 2006, and that there were over 600 snagging items. The final account was progressed, but was not agreed. An adjudicator determined the amount of the final account. Irrespective of a claim for a final payment, Brookside issued a withholding notice.

The issue was whether the final account should now be paid, and whether the withholding notice was valid.