Ringway Infrastructure Services Limited V Vauxhall Motors Limited (Part I)

The court should enforce the adjudicator's decision awarding the contractor the full amount of its interim payment application under JCT 98 WCD where the employer had failed to give notice under clause 30.3.3 specifying the amount of the payment proposed to be made

Technology and Construction Court
Akenhead J
23 October 2007
One of the jurisdictional challenges made by the employer in the court enforcement proceedings brought by the contractor in respect of the award made by the adjudicator to the contractor was that the dispute in respect of the contractor's interim payment application never crystallized. The employer alleged that the so-called application was not one submitted under the terms of the contract and that the negotiations with regard to the "application" were carried out in a leisurely fashion and were treated by the contractor as an academic exercise.
Akenhead J rejected the employer's contentions. There was nothing in the correspondence, including the application's covering letter, or in the evidence during the period up to the submission of the application to suggest that it was to be treated in any way other than a contractual one. The fact that practical application might well have occurred by the time the application was submitted did not mean that applications could not continue to be made insofar as clause 30.3.2 provided that interim payment applications were to be made as and when further amounts were due to the contractor. Clause 30.3.2 made it clear that each interim payment application was to be accompanied by such details as were required by the employer's requirements and there was no suggestion that the documentation enclosed with the payment application in question was in any way insufficient. There was no reason why the ordinary meaning of the phrase used by the contractor, namely "application for interim payment", did not apply since by making such an application the contractor was asking to be paid or was claiming to be paid the sum in respect of which it was applying for payment. The contractor in the narrative part of its payment application provided a clear explanation of the sums in respect of which it was seeking recovery by expressly stating, for example, that it sought payment for the measured works and claimed interest on retention monies wrongly not released. It was not necessary for the contractor to submit a further claim or request for immediate payment before it was entitled to be paid on the basis that the fact that the contractor did not make a new demand for payment after the employer's non-notification of the contractor's payment entitlement under clause 30.3.3 was irrelevant and simply established that there was no defence to the claim.