Clark Contracts Ltd v The Burrell Co (Construction Management Ltd)
Scotland, Glasgow Sheriff Court
Sheriff James A Taylor
The contract incorporated JCT 80. The architect issued a payment certificate in a specified sum. The contractor sued for a sum based on the certificate but without specifying the works it had performed which resulted in the issue of the certificate. The issue for determination was whether the contractor in its pleadings had said sufficient to entitle it to a proof of its averments in support of its claim for the certified sum.
Sheriff James A Taylor held that the contractor had pleaded its claim for payment of the sum certified in the interim payment certificate issued by the architect under JCT 80 sufficiently to entitle it under Scottish court practice and procedure to a proof of its averments on the ground argued for by the employer. This ground was that notwithstanding that it had not given a notice of intention to withhold payment under section 111 of the Construction Act 1996, the serving of such a notice had not been necessary on the basis that the contractor in suing for the certified sum had not claimed "a sum due under the contract" and that the contractor should have but failed to provide details of the works carried out represented by the certificate.
The contractor's entitlement in respect of the interim certificate was one to be paid a sum due under the contract and the issue of that certificate was the occurrence of "some other event on which the contractual liability to make payment depended". If the employer had wished to avoid its contractual payment obligation on the ground that the works did not conform to the contractual standard, it would have had to have served a section 111 notice (which it failed to do).
The issue of an interim certificate under a JCT form of contract will create a “sum due under the contract.” Under Scottish court procedure, if the employer wishes to contest the certificate on the ground that the works represented by the certificate are not in accordance with the contract, it will be necessary to serve a notice of withholding under section 111.