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ARTICLE · 30 OCTOBER 2020

Legal Developments In Construction Law: October 2020

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A contractor issued court proceedings against a developer for the second half of retention and a sum for VAT. Practical completion of the contracts in question was achieved in 2011...

United StatesGovernment, Public Sector
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1. Recovering retention: wot, no certificate?

A contractor issued court proceedings against a developer for the second half of retention and a sum for VAT. Practical completion of the contracts in question was achieved in 2011, but the developer alleged a number of defects, in particular defective heat pumps, which were replaced in 2015. No certificates of making good defects were ever issued, but did their absence prevent recovery of the balance of the retention?

The court applied the principle in Henry Boot Construction Ltd v Alstom Combined Cycles Ltd, that a contractor's right to an interim payment arises when a certificate either was issued, or ought to have been issued. In that case, although the issue of a certificate was a condition precedent to payment, its absence did not bar the right to payment. If that right is established, it enables the court to decide that a certificate for payment ought to have been issued. In this case the court also noted that

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