UK: Smash And Grab Is No Longer The Last Word In Adjudication

Coulson J leaves his legacy in the Technology & Construction Court (TCC) with his last judgment before his elevation to the Court of Appeal. He dishes out the last word on "smash and grab" adjudications and his hope that this judgment will help to lead to their demise.

The contract and the facts

S&T (UK) Limited ("S&T") was engaged by Grove Developments Limited ("Grove") to design and build a new Premier Inn Hotel at Heathrow Terminal 4. The form of contract was JCT Design and Build 2011 incorporating a Schedule of Amendments (the Contract). The contractual completion date was 10 October 2016. Practical completion was not achieved until 24 March 2017. The dispute centred around S&T's interim payment application no. 22 and the validity of Grove's Pay Less Notice issued in response.

Prior to the matter ending up in court, there had been three adjudications in relation to the Contract. The first adjudication (Adjudication No 1) decided that the Schedule of Amendments was incorporated into the Contract; the second adjudication (Adjudication No 2) decided that S&T was entitled to a partial extension of time to 9 January 2017; and the third adjudication (Adjudication No 3) decided that Grove's Pay Less Notice dated 18 April 2017 was invalid in response to S&T's application for payment no. 22. The "smash and grab" decision in the third adjudication meant that S&T were, on the face of it, entitled to be paid in excess of £14 million pounds.

Grove had pre-empted an adverse result in Adjudication No 3 by the commencement of Part 8 proceedings in the TCC. This, together with S&T's counterclaim and separate enforcement action in respect of the decision of Adjudication No 3, raised a number of issues for the court's determination.

The main issues

There were four issues to be decided by the court:

  1. whether or not Grove's Pay Less Notice dated 18 April 2017 was valid;
  2. whether, even if Grove's Pay Less Notice was valid, the result in Adjudication No 3 should nonetheless be enforced;
  3. whether, in principle (and if the Pay Less Notice was invalid), Grove would be entitled to commence a separate adjudication as to the "true" value of S&T's interim application no. 22; and
  4. whether Grove's notices in respect of liquidated damages were properly issued. This final point is a separate issue to the validity of the Pay Less Notice and will not be covered in this alert.

The decision

The court found in favour of Grove on the following basis:

Issue 1

S&T had argued that the Pay Less Notice dated 18 April 2017 was invalid because the basis on which Grove had arrived at its (lower) valuation was set out in a separate document which had been provided to S&T five days earlier. S&T contended that, because this earlier document was not re-attached to the Pay Less Notice it failed to properly specify the basis on which the sum had been calculated.

Coulson J did not agree. He found that the Pay Less Notice dated 18 April 2017 (PLN) was valid because it specified both the sum the employer considered to be due and properly incorporated - by reference - the basis on which the sum was calculated.

As long as it was entirely clear what document was being referred to and the contents of the underlying calculation were clear and complete, there could be no issue with incorporation by reference. He took the opportunity to re-state the approach the Court will take when deciding on the validity of a notice:

"A pay less notice will be construed by reference to its background, in order to see how a reasonable recipient would have understood it. The court will be unimpressed by nice points of textual analysis, or arguments which seek to condemn the notice on an artificial or contrived basis. One way of testing to see whether the contents of the notice are adequate is to see if the notice provides an adequate agenda for a dispute..."

On this basis, S&T's argument that the PLN was invalid did not succeed.

Issue 2

Having finally determined the validity of Grove's Pay Less Notice, the court found that the decision in Adjudication No 3 was "no longer material or enforceable".

Issue 3

Having found in favour of Grove on the first two issues, the court held that - even if Grove's Pay Less Notice had been invalid and S&T had been permitted to enforce the result of the "smash and grab" Adjudication No 3 - Grove would nevertheless have been entitled to commence a separate adjudication seeking a decision as to the "true" value of S&T's interim application no. 22.

The crux of this issue is succinctly summarised by Coulson J as follows:

"...can an employer, whose payment notice or pay less notice is deficient or non-existent, pay the contractor the sum stated as due in the contractor's interim application and then seek, in a second adjudication, to dispute that the sum paid was the 'true' value of the works for which the contractor has claimed? In my view, on the application of first principles...the answer to that question is seems to me to be clear that an employer in the position of Grove must pay the sum stated as due, and is then entitled to commence a separate adjudication addressing the 'true' value of the interim application."

The cases of ISG v Seevic and Galliford Try v Estura were considered in which the judge had concluded that, in the absence of a Pay Less Notice from the employer, that the employer has agreed (or must be taken to have agreed) the value stated in the contractor's interim payment application. In this way, he said, the true value of the application "has already been determined".

Coulson J disagreed with this analysis for the reason that these cases do not deal directly with Grove's submission that, following payment of the sum stated as due, the employer should be able to commence an adjudication as to the "true" value of the interim application. The court decided that to the extent that the authorities "answer that question in the negative", they should not, in Coulson J's view, be followed.

Coulson J made clear in this case:

".... I do not consider that the conclusions which I have reached strike at the heart of the adjudication system. On the contrary, I believe that it will strengthen the system, because it will reduce the number of 'smash and grab' claims which, in my view, have brought adjudication into a certain amount of disrepute".


In very simple terms - this case is of particular interest as it confirms that a party does have the right to adjudicate on the "true" value of an interim application where there is either no Payment / Pay Less Notice or the relevant notice is deficient in some way.

In light of this definitive decision, is this the beginning of the end for "smash and grab" adjudications? Coulson J's last decision in the TCC before being elevated to the Court of Appeal certainly means that he bows out with a flourish.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
19 Sep 2019, Seminar, Birmingham, UK

Providing GCs, Heads of Legal and senior in-house lawyers with timely, topical and practical legal advice on a variety of topics.

26 Sep 2019, Seminar, London, UK

Providing GCs, Heads of Legal and senior in-house lawyers with timely, topical and practical legal advice on a variety of topics.

8 Oct 2019, Seminar, Birmingham, UK

Supporting the development of paralegals, trainees and lawyers of up to five years' PQE by providing valuable knowledge and guidance together with practical tips.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions