Is there a chance that parliament intended the payment notices system in the Construction Act to be penal? Fail to send a bit of paper telling the contractor what you intend to pay – or not pay – in the next wee while and, bingo, the penalty is slapped on you: you must pay what the contractor asked for. That’s rather like receiving your electricity bill and, if you fail to dispute the accuracy of the amount within seven days, then bingo: the penalty is to pay the amount in the bill, no matter what it is.

The case of Grove Developments Ltd vs S&T (UK) Ltd came along in February, and  has since been talked about no end. Payers smile; payees scowl. It was Mr Justice Coulson’s last judgment in the Technology and Construction Court (TCC) before – after 14 years in the role – he was promoted to the Court of Appeal. In his final fling, he took the payment notices regime by the throat – in the form of the Grove case ruling.

You can almost hear him saying, “Look here, folks, I want to sort out this affair.” He didn’t actually say that, of course – instead he said: “I should say this. In all my time in the TCC, I am not conscious that I have ever concluded that one of my judge colleagues, past or present, was wrong in deciding an issue in a certain way. I am not entirely comfortable about doing so now.” Then he did. He had found himself unable to follow the same line about payment notices as was taken by judges in a number of other cases.

“It’s rather like receiving your electricity bill and, if you fail to dispute the accuracy of the amount within seven days, then bingo: the penalty is to pay the amount in the bill, no matter what it is”

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