Payment applications, conditions precedent and estoppel by convention

In Lidl Great Britain Ltd v Closed Circuit Cooling Ltd (t/a 3CL) [2023] EWHC 2243 (TCC), [2023] BLR 629 His Honour Judge Stephen Davies, sitting as a Judge of the High Court, held that the claimant had no defence to the enforcement of the decision of an adjudicator. It had not been established that the adjudicator had breached the principles of natural justice. It was also held that the defendant had not failed to comply with a condition precedent to its entitlement to make an interim payment application and that, in any event, the claimant was estopped by its conduct in accepting the previous applications for payment from taking the point that the defendant had failed to comply with the requirements of the contract in making the payment application that was at the heart of the litigation. It was also held that the claimant was not entitled to issue a hybrid payment and pay less notice. A payer must serve two separate notices, namely a payment notice and a pay less notice. Finally, it was held that the payment provisions in the contract did not satisfy section 110(1)(b) of the Housing Grants, Construction and Regeneration Act 1996 because the contract did not contain a fixed, final date for payment in relation to the sum which was said to have become due.