A pay less notice had to be served by 14 August. It was emailed to the contractor at 9.50pm on Friday 12 August and arrived the same evening. So it was in time – or was it?
The Construction Act contains provisions for calculating dates by which actions, such as serving a pay less notice, have to be taken, but it does not deal with service by email and fixing the date by which an emailed notice is deemed served. This is left for the parties to agree and, in this case, the contract said that service by email by 4.00pm on a Business Day would take effect on that day. Otherwise, service would take effect on the next Business Day, which was Monday 15 August and thus too late. By default, the employer consequently had to pay the ‘notified sum’ identified in the contractor’s application.
The employer sought a stay of enforcement based on its own inability to pay the judgment sum, and the contractor’s alleged inability to repay it if it was subsequently found not to be due. Applying previous case law, the court refused the stay, noting that it will be rare and exceptional for the court to stay the execution of a judgment sum based on the defendant’s inability to pay. The circumstances in this case were not exceptional and the evidence before the court did not indicate that the contractor would be unlikely to be able to re-pay the judgment sums, if subsequently found to be repayable to the employer.