Can Hulk Still Smash?
A Smash and Grab Retrospective
“Well done is better than well said” according to the eminent American polymath Benjamin Franklin.
This, it seems is a good and noble maxim for one to live by.
In 2011 the revised Construction Act introduced requirements for payment notices. The language of the Act suggested any sum applied for would fall due, in the absence of a payment notice.
If indeed this interpretation was correct, the Act smashed poor old Benjamin Franklin’s sage adage to pieces. What was said would now matter more than what was done. In fact, it was worse. What was done mattered not less, but not one bit.
Almost immediately contractors advanced Adjudication proceedings solely on the failure to issue payment notices and they started winning, winning big and winning every time. The respondents scream of injustice fell on deaf ears, the old rules of common sense, facts, evidence, and veracity were gone, like so many tears in the rain.
It didn’t matter if the contractor had done no work at all, it only mattered that they said they had done work and jotted down a figure. You didn’t even have to learn to play a guitar, or get a blister on your little finger it was money for nothing with cheques for free.
Experienced and highly respected Adjudicators facilitated the madness. When pressed the same Adjudicators customarily wheeled out the classic Nuremburg defence claiming to be merely enacting the ‘will of parliament’. For my two penneth this did not relieve Adjudicators of their greater responsibilities, particularly when a moral choice was in fact possible. As JFK famously remarked: “the only thing necessary for triumph of evil is that good men do nothing”.
The Courts were no better. The haughty declarations in ISG v Seevic underlined the Courts detachment from real world consequences. This judgement shot down the ability to determine the sum on a legitimate basis, with a second ‘proper sum due’ Adjudication. ISG v Seevic meant neglecting to issue a payment notice was now a capital crime, heralding a new age of ‘Smash and Grab’.
I sincerely doubt Edwards Stuart-J ever had to tell a family construction business they now faced ruin, simply because someone had written a down fanciful figure and they had not: “defended themselves by serving notice”. In fact, it is doubtful that anyone with experience at the wrong end of these outrageously effective ‘open and shut’ proceedings could have held such views.
As is it stood, contractors made easy hay and the lawyers and consultants made easy corn, but the whole circus was so deeply unjust, it could not go on forever. For my part, I have long held the view that generations to come will scare believe that Smash and Grab actually existed.
On the Septennial of the Construction Act it fell to the Hon Mr Justice Coulson in Grove Developments and S&T (UK) Limited to put the world to rights. Coulson was correct in his apprehensions expressed at para 143: “smash and grab claims in my view have brought adjudication into a certain amount of disrepute”. Aye that they have.
In Grove, Coulson proceeds to ‘Hulk Smash’ Edwards Stuart-J decision in ISG v Seevic by overturning the ‘erroneous’ ISG and deciding that a party on the receiving end of a Smash and Grab adjudication can commence a proper sum due Adjudication.
It is now widely considered that this landmark Judgement will significantly reduce and perhaps eliminate Smash and Grab. This would mean the brutal Hulk of Smash and Grab being replaced by the considered Bruce Banner of proper sum due.
My colleague Tom Lamb penned a detailed article on the Grove case, together with a link to the full transcript: https://www.alambassociates.com/case-update-guarding-smash-grab-adjudications/ which I recommend reading.
For my part I welcome the apparent end of ‘Smash and Grab’ for moral and professional reasons.
Morally, to me Smash and Grab adjudication was just plain wrong. It was just too unjust. I don’t intend to preach too much, as of course I practiced. Professionally, a Smash and Grab is a very straightforward ‘template’ which can be done by almost anyone. A proper sum due Adjudication is different and demands a degree of skill to achieve a successful outcome.
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