We have had about 90 reported enforcement decisions to date, many of which have appeared contradictory – allowing selective cherrypicking of precedents, particularly when it comes to the failure of paying parties to give the five-day notice of intended payment as required by the equivalent Construction Act contract clause, or under the Scheme for Construction Contracts.
In the public interest, there needs to be certainty as to the process, and what has been lost sight of by the legal community is that an interim valuation is just that. As practitioners well know, it is adjustable next month, and adjustable on final account.
The duty of an adjudicator is to independently decide whether party A did or did not owe party B, say, £50,000, on the facts at that snapshot in time. If party A has received an application complying with the payment mechanism, neither the act nor the scheme says it necessarily has to be correct – it is "due" in time only. It is for party A to challenge it and issue a five-day notice to party B.
What Carter vs Nuttall tells us is that adjudicators have no jurisdiction to hear different arguments and evidence than that already put at the time the dispute crystallised. In a no-five-day-notice situation, it will now no longer be open to a silent party A to bring in new evidence to excuse their breach of their act and scheme obligation. Some of us adjudicators have always taken this view, Mr Bingham.
Jeremy Hackett, Schofield Lothian, London EC4.