Kersfield Developments (Bridge Road) Ltd v Bray and Slaughter Ltd

[2017] EWHC 15

This was an adjudication enforcement case. Amongst other issues, Kersfield said that Bray was not entitled to the £1.1 million awarded by the adjudicator because Kersfield had issued a valid a valid pay less notice. This issue raised an important point about the service of any payment notice.

Kersfield’s pay less notice was served by email and post. The email was sent, on time, at 9.50 p.m. on Friday 12 August 2016. A letter was sent on the same day. Clause 1.78.3A of the contract said that a notice may be sent electronically provided a copy was also sent on the same day to the addressee by pre-paid first class post. So Kersfield complied with that. However the contract also said that any notice so served would take effect on the next business day, here 15 August 2016.

The pay less notice was due by 14 August 2016.  Mrs Justice O’Farrell noted that the contract allowed the parties the convenience of service by email whilst at the same time providing certainty as to the date on which such notice takes effect. That was “reasonable and sensible”. The pay less notice was therefore late.

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