‘Smash and Grab Adjudications’ – What are we Still Arguing About?

Kort Egan

September 2023

A paper presented to the Society of Construction Law in Manchester on 6th September 2023

The paper looks at ‘smash and grab’ adjudications – in which payment is sought by operation of the payment provisions in the contract and/or the Housing Grants, Construction and Regeneration Act 1996. There was talk of the demise of smash and grab adjudications following the decision in Grove Developments v S&T. However, this paper addresses several cases which have expanded the jurisprudence in the area and also considers whether there remains a lack of clarity in relation to some points arising in such adjudications. The paper shows that the presence of what could be construed as a payment application and the absence of a payment notice/pay less notice does not automatically mean that there is a notified sum. The area is more complex than it first seems.

A. Introduction – B Jurisdiction – C. Payment applications – C.1 Substance, form and intent and the high threshold –C.2 Timing – C.3 Conclusion on payment applications – D. Payment notices – D.1 Downs Road Development LLP v Laxmanbhai Construction (UK) Ltd – the emergence of a lack of clarity in the law? – E. Pay less notices – F. A lack of clarity as to the level of specificity required? – G. When can a true value adjudication be commenced if a ‘smash and grab’ adjudication has already been commenced? – H. Conclusion

The author: Kort Egan is a barrister practising from Gatehouse Chambers.

Text: 14 pages