As the name implies, final accounts under building contracts are fundamentally different from interim applications. If a final account payment notice and pay less notice are missed there is no opportunity for the payer to claw back an overpayment in the next valuation, because there are no more. But in Paice v Harding, Mr Justice Edwards-Stuart decided that an employer, under a JCT 2011 Intermediate Form of contract, who failed to serve a valid pay less notice and consequently had to pay the final account sum applied for, following termination, could still go to adjudication or litigation to have a determination of the sum properly due. Did the Court of Appeal agree?

It did. It said that the employer’s failure to serve a pay less notice had limited consequences. The employer had to (and did) pay the full amount applied for and awarded in adjudication and argue about the figures later but it was then entitled to go to adjudication (or litigation) to determine the correct value of the contractor’s claims and its own counter-claims. Which meant the contractor failed in its application for an injunction to stop the employer’s adjudication to that end.

Harding (t/a M J Harding Contractors) v Paice & Anor [2015] EWCA Civ 1231