LIDL GREAT BRITAIN LTD v CLOSED CIRCUIT COOLING LTD T/A 3CL

[2023] EWHC 2243 (TCC), Technology and Construction Court, HHJ Stephen Davies sitting as a Judge of the High Court, 11 September 2023

Payment application – Condition precedent – Relevance of previous non-enforcement of requirements

The parties entered into a contract under which the defendant was entitled to make an interim payment application on the achievement of certain milestones. The issue in the present case concerned interim application 19 made by the defendant, which the claimant asserted was invalid because it failed to comply with the contractual requirements. The defendant’s case was that it had complied with these requirements and, to the extent that it had not done so, compliance was not a condition precedent to its entitlement to make the payment application and the claimant could not take the point because it had accepted the previous 18 interim payment applications.