It may be – following the case of Rupert Morgan Building Services (LCC) David Jervis and Harriet Jervis [2004] 1 WLR 1867 the courts distinguished between contracts which provide for certification and require the architect’s certificate to be paid and contracts which do not. Where the mechanism of valuation is certification by an impartial certifier and there is no timely notice of set off, then payment of the certified amount will be enforced. Where there is no impartial certifier, an argument that the work has not been done to the value claimed or that is has been done defectively may be sufficient to defeat a claim for payment in an adjudication, or an application to the court for summary judgment, even though there is no timely withholding notice.
Note, that under the JCT 1998 With Contractor’s Design Form of Contract, because the valuation and payment process is driven by the contractor and because the contract provides that in the absence of a notice of set off payment must be made of the value applied for, in the absence of a valid timely notice of withholding the employer must pay the amount applied for. However, the employer may have an argument against payment where the contractor applies for payment at practical completion and the employer considers that the works are not practically complete.
