The procedure which JDM had agreed to, involved a DEFRA representative being based on each site who would record the times and activities carried out by each individual or an item of plant. The sheet would then be signed each day by that representative and a nominated JDM employee. In practice, many sites had no DEFRA representative. Even where there was such a representative, often the timesheets were not verified or authenticated.
The timesheets and invoices were contemporaneous. The production of the timesheets was the only reasonable means for JDM to prove its entitlement.
Therefore, the Judge concluded:
"It would be to allow DEFRA to take advantage of its breach of contract if DEFRA was to be allowed to make any more extensive challenge to the time sheets than it could have done following their verification by one of its site based representatives. Thus, for any time sheets now in issue which had not been verified by DEFRA on site, DEFRA now has the evidential burden of showing that the contents of the time sheet were inaccurate. In practical terms, therefore, DEFRA is restricted in its attack on the time sheets to showing that they contain arithmetical or other patent errors, that they are subject to some general error such as not allowing for deductible meal breaks, were fraudulently produced or were produced by a process which was inherently unreliable such that no weight may be placed upon them."
JDM Accord Ltd vs Secretary of State for the Environment, Food and Rural Affairs, 16 January 2004, TCC, HHJ Thornton QC
For further information, call Tony Francis or Nicholas Gould on 0207 956 9354
This is an interesting case because contractors and subcontractors frequently seek to prove entitlement by reference to timesheets, which are often not approved. In this case DEFRA did not check and approve the timesheets provided by the contractor. When the contractor sought payment, DEFRA sought to argue that the timesheets could not be relied upon because they had not been verified and approved by DEFRA at the time the work was carried out. The Judge held that DEFRA was seeking to take advantage of its own breach and he would not allow it. DEFRA was, therefore, restricted to showing that the timesheets were inaccurate, rather than the contractor having to show that they were accurate.