RECOVERING RETENTION MONIES WHERE A MAKING GOOD CERTIFICATE HAS NOT BEEN ISSUED
Contractors and subcontractors working under standard forms in the United Kingdom will frequently complete the works and wait for the release of the second half of retention over a period typically of twelve months. Whilst some clients and their contract administrators will issue certification certifying that the defects have been made good promptly the less honest will not and use it as a pretext not to make payment.
In cases such as this the court or adjudicator will apply the principles stated in the case of Henry Boot Construction Ltd v Alstom Combined Cycles Ltd 1 WLR 3850; [2005] 3 All ER 932. Here it was held that a contractor’s right to an interim payment arises when a certificate either was issued, or ought to have been issued. In that case, although the issue of a certificate was a condition precedent to payment, its absence did not bar the right to payment. Once this right is established, it enables the tribunal to decide that a certificate for payment ought to have been issued.
The cases of Birse Construction Ltd v Eastern Telegraph Company Ltd [2004] EWHC 2512 (TCC), Henry Boot (mentioned above )and S&T (UK) Ltd v Grove Developments Ltd [2018] EWCA Civ 2448 held that when it comes to the determination of the parties’ substantive rights, the court should not be too hidebound by the existence or absence of notices which are required as part of the contractual machinery regulating the cash-flow between them.
In the 2020 case of Dr Jones Yeovil Ltd v The Stepping Stone Group Ltd [2020] EWHC 2308 (TCC) the court applied the jurisprudence of the above cases, DR Jones Yeovil Limited, a contractor, succeeded on its claims for unpaid retention under two contracts for the construction of 11 assisted living units and defeated the counterclaim for over ￡240,000 for alleged defects raised by the defendant employer in full.
Hanscomb can support you to recover monies improperly withheld, our experts can support litigation or adjudication as well as provide expert testimony covering quantum, delay and technical matters.
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