Cases - Rupert Morgan Building Services (LLC) Ltd v Jervis (David) and Jervis (Harriet) [CA]
Record details
- Name
- Rupert Morgan Building Services (LLC) Ltd v Jervis (David) and Jervis (Harriet) [CA]
- Date
- [2003]; [2004]
- Citation
- EWCA Civ 1563; BLR 18
- Legislation
- Keywords
- Contract - construction contracts - certification of a sum - payment - withholding notices - whether certification of a sum made it a 'sum due' under the contract - Housing Grants, Construction and Regeneration Act 1996, section 111
- Summary
-
Contractors were engaged by the employers to carry out building works on a cottage pursuant to the Architecture and Surveying Institute standard form.
The contractors sought summary judgment for payment of certified sums. The employers disputed the claim on grounds that the works for which payment was claimed were not carried out, or had already been paid for. However, no withholding notice had been served.
The Court of Appeal approved the distinction drawn by the court in Clark Contracts between a contract with a mechanism for deciding what was 'due', and a contract with no such mechanism. In S. L. Timber, the decision was explained by the fact that the contract in that case had no architect or system of certificates. The builder simply presented his bill for payment.
The Court of Appeal explained that the bill in itself did not make any sums due. What, under such a contract, would make the sums due was just the fact of the work having been done. So, in that case, no withholding notice was necessary in respect of works not done - payment was not due in respect of them.
However, the situation was different where a sum had been certified for payment. The certification itself was sufficient to give the contractor a right to payment, and if the employer was to avoid the requirement to pay a certified sum when it fell due on whatever basis, it needed to serve a withholding notice setting out that basis.