Construction Law
Construction Payment Dispute Barristers
Barrister-led advice on unpaid applications, payment and pay less notices, smash and grab and true value adjudications, retention and suspension for non-payment, for payers and payees alike.
Takes about 2 minutes. No obligation.
Barristers regulated by the Bar Standards Board
Most construction payment disputes turn on the notice rules in Part II of the Housing Grants, Construction and Regeneration Act 1996, as amended in 2011. Where a contract lasts 45 days or more, the payee is entitled to interim or stage payments. Each payment must have a due date and a final date for payment. Within 5 days after the due date, a payment notice must be given stating the sum considered due and how it is calculated. If the payer fails to give one, the payee can rely on its own application, if the contract treats it as a payment notice, or serve a payee's notice in default.
The sum in a valid payment notice becomes the "notified sum". Under section 111 the payer must pay it by the final date for payment unless it gives a pay less notice in time, setting out the lower sum it considers due and the basis for it. Under the Scheme for Construction Contracts, which fills any gaps in a non-compliant contract, the final date is 17 days after the due date and a pay less notice must be given no later than 7 days before the final date. Many standard form contracts set their own periods, so the contract always needs checking first.
When a payer misses these deadlines, the payee can bring what is often called a "smash and grab" adjudication, claiming the notified sum without having to prove the true value of the work. The payer can bring its own "true value" adjudication to establish what is really owed, but in S&T (UK) Ltd v Grove Developments Ltd (2018) the Court of Appeal held that the payer must first pay the notified sum. That makes timing and the precise wording of notices critical on both sides.
HireABarrister is a Barrister-led service. Your Barrister reviews the contract's payment machinery, checks whether each application and notice is valid, and drafts the notices, adjudication submissions or court documents that follow. You or your company serve them within the deadlines, because Barristers do not conduct litigation unless separately authorised. If the payment dispute ends up in court, the same Barrister can represent you.
What Construction Payment Dispute Barristers Do
For Contractors and Subcontractors
Your Barrister can:
- Check whether your application can stand as a payment notice
- Draft a payee's notice in default where no payment notice was given
- Advise on a smash and grab adjudication for the notified sum
- Draft a notice of intention to suspend performance
- Advise on claims for retention and the final account
- Calculate statutory interest and fixed recovery costs where they apply
For Employers and Main Contractors
Your Barrister can:
- Advise on whether an application was valid and in time
- Draft payment and pay less notices with a clear basis of calculation
- Advise on set-off for defects and delay within a pay less notice
- Respond to a smash and grab adjudication
- Advise on starting a true value adjudication after paying
- Review payment clauses before the next project starts
Adjudication and Court Work
Your Barrister can draft and argue:
- Notices of adjudication and referrals on payment disputes
- Responses to payment claims
- Part 8 claims on the validity of an application or notice
- Adjudication enforcement claims in the TCC
- County Court debt claims for unpaid sums
- Statutory demands and their risks in disputed debts
Your Barrister drafts these documents. You serve the notices and issue any proceedings, paying the court fee yourself.
What You Handle
Under Direct Access you:
- Keep a dated record of every application, certificate and notice
- Send applications and notices by the method the contract requires
- Gather valuations, measured work and variation records
- Serve adjudication papers and apply to a nominating body
- Keep working or suspend only after taking advice
- Issue and serve any court claim
How Direct Access Works
- 1
Map the Payment Cycle
Your Barrister identifies the due date, final date, payment notice and pay less notice periods for the application in dispute, from the contract or from the Scheme if the contract does not comply with the Act.
- 2
Test Each Notice
Each application and notice is checked for timing, service, and whether it states a sum and the basis of calculation. Small defects can decide the outcome, so this is where most payment disputes are won or lost.
- 3
Choose the Route
Depending on the answer, the options include paying or demanding the notified sum, a smash and grab adjudication, a true value adjudication once the notified sum is paid, a Part 8 claim on a point of construction, or a negotiated settlement.
- 4
Protect Cash Flow
Where a payee is not paid the sum due by the final date, it can suspend some or all of its obligations under section 112 after giving at least 7 days' written notice stating the grounds. Your Barrister can advise whether that step is safe and draft the notice.
- 5
Adjudication or Court
Your Barrister drafts the adjudication submissions or court documents and, if a decision is not honoured, can argue the enforcement claim in the Technology and Construction Court.
- 6
Interest and the Next Application
Once the sum is paid or decided, your Barrister can advise on interest and on how to avoid the same problem on the next payment cycle, whether that means better applications or properly timed notices.
Does your case qualify for Direct Access?
Tell us about your matter and we'll confirm whether you can instruct a Barrister directly, then match you with the right specialist.
Prefer to talk? Call 0800 302 9921. Lines open 8am to 8pm, same-day callback.
Frequently Asked Questions
What happens if no pay less notice is served?
Where a valid payment notice (or a payee's application or notice in default that counts as one) states a sum, and the payer does not give a valid pay less notice in time, section 111 requires the payer to pay the notified sum by the final date for payment. Disputes about value, defects or delay do not reduce it on that cycle.
What is the difference between a smash and grab and a true value adjudication?
A smash and grab adjudication claims the notified sum because the payer missed its notice deadlines, without the adjudicator valuing the work. A true value adjudication asks the adjudicator to decide what the work is actually worth. Following S&T v Grove, the payer must normally pay the notified sum before it can start a true value adjudication for the same payment cycle.
Can I stop work if I am not paid?
Section 112 gives a right to suspend performance of any or all obligations if a sum due is not paid in full by the final date and no effective pay less notice was given. You must first give at least 7 days' written notice stating the grounds. You are then entitled to reasonable costs and expenses caused by the suspension and an extension of time for the period of suspension. Suspending without a valid basis can itself be a breach, so take advice first.
Is a "pay when paid" clause in my subcontract valid?
Generally no. Section 113 makes a term that payment depends on the payer being paid by someone else ineffective, except where that third party is insolvent. Since 2011, making payment conditional on the performance of obligations under another contract, or on a certificate under another contract, is also generally ineffective. The Scheme then supplies the missing payment terms.
How can I recover retention?
Retention is governed by the contract, usually with part released at practical completion and the rest after the defects period or making good. Problems often arise where completion of the main contract is delayed or the defects period is never closed out. A Barrister can advise whether the release trigger has occurred and whether retention can be pursued in an adjudication.
Can I claim interest on late payment?
If the contract does not provide a substantial remedy for late payment, the Late Payment of Commercial Debts (Interest) Act 1998 implies a right to statutory interest at 8% above the Bank of England base rate on business to business debts, plus a fixed sum towards recovery costs. Many construction contracts set their own interest rate, which then applies if it is a substantial remedy.
I am a homeowner and my builder says I must pay an application. Do these rules apply?
The statutory payment notice rules do not apply to a contract that principally relates to work on a home you occupy or intend to occupy (section 106). Your obligations depend on the contract itself and on consumer law. A Barrister can review the contract and advise what is properly due.
Why use a Barrister rather than a claims consultant on a payment dispute?
A claims consultant can prepare a payment claim and run an adjudication, but cannot give you a Barrister's rights of audience if the dispute moves to court, for example a Part 8 claim or enforcement in the TCC. Here the same Barrister advises on the notices, runs the adjudication and argues any hearing. Fixed fees, agreed up front. Advice starts from £250 and court representation from £850, with a clear quote before any work begins.
Payment Deadline Missed or Coming Up?
Send us the contract, the application and any notices. A specialist construction Barrister will review them and quote a fixed fee.
Or call us: 0800 302 9921. Lines open 8am to 8pm, same-day callback.