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Insight · Getting paid

When a missing notice
hands you the money.

An adjudication that asks nothing about what the work was worth, only whether the notices were served. What it wins, and the second adjudication that usually follows it.

Published ·5 min read·Written by Unibuild

A smash and grab adjudication asks one question: were the notices served in time. Where the payer served no valid payment notice and no valid pay less notice, section 111 requires it to pay the notified sum in full by the final date for payment, whatever the work was worth. The adjudicator decides on the notices alone and never reaches the valuation.

What it is, and why it exists

The name is industry slang and slightly unfair. What it describes is a party enforcing the statutory payment regime exactly as written.

The Construction Act makes the notified sum payable in full unless a valid pay less notice reduces it before the final date for payment. It sets deadlines for both notices. If the payer misses them, the Act does not invite an adjudicator to work out a fair figure. It says the notified sum is due.

So the adjudication is short and documentary. What was the notified sum, was a payment notice given within five days of the due date, was a pay less notice given before the contractual deadline, and has the final date passed. Four questions, all answerable from documents, and the valuation never comes up.

The defence "but the work was not worth that" is not a defence to this. It is an argument for a different adjudication, brought later.

When you actually have one

Three things have to be true, and the third is where most attempts fall over.

  1. There is a notified sum. Either the payer gave a payment notice, or it did not and your application validly stood as the default notice under section 110B. If neither exists, there is nothing to enforce.
  2. No valid pay less notice was served in time. Valid means it specified the sum the payer considered due and the basis of calculation, and in time means before the deadline the contract sets.
  3. Your own application was properly made. This is the weak point. A payer defending one of these will attack the application first: was it made under the right clause, on the right date, in the right form, stating the basis of calculation. If your application was not compliant, there is no notified sum and the whole thing collapses. That is why how the application is written matters more than anything else here.

What happens next, and why it is the real story

Winning does not end the argument, and any page that implies otherwise is selling you something.

A payer that has paid a notified sum it disputes can start its own adjudication on the true value of the work, and if the true value is lower it can recover the difference. That is the settled position: the notice regime governs what must be paid now, not what the work was ultimately worth.

There is an important sequencing point. The payer generally has to pay the notified sum first before pursuing the true value question. It cannot simply refuse to pay and raise valuation as a defence to the smash and grab. That ordering is the whole commercial value of the exercise.

Which means what you win is this: the cash, now. The other side carrying the cost and effort of the next reference. And a considerably better negotiating position while you hold the money rather than while they do. In an industry where firms fail waiting for cash, that is worth a great deal. It is not the same as being right about the valuation, and going into one believing it is a windfall is how people end up disappointed.

Whether to bring one

Three considerations beyond the merits.

  • The cost is not recoverable. Section 108A means you generally cannot recover your own legal or consultancy costs from the other side, so the sum in dispute has to be comfortably larger than the cost of getting it. The fee-capped low value procedure changes that arithmetic on smaller debts and is set out in when the contractor above you will not pay.
  • It is a relationship event. There is no polite version. On a repeat client that is otherwise good to work for, exhausting the earlier rungs first is not weakness; it is usually cheaper.
  • Your own paperwork gets audited. Bringing one invites forensic scrutiny of your application, your dates and your records. Firms whose records are strong should be untroubled by that, and firms whose records are weak should know it before they start rather than during.
Where this touches the platform

The entire case is documents with dates on them, which is what Unibuild holds. Applications sit against the project with the date each was made, receipts against them, retention withheld captured against the receipt it came off, and gross applied and gross balance calculated as at each row's own date rather than only as at today. Where the job was quoted through the platform, the works schedule draws on the priced sections of that quotation with their tendered values, so the measure behind the application has a documented origin. That is the pack an adjudicator wants and the pack a defending payer will try to pull apart. What the platform does not do is track your statutory notice deadlines or tell you whether a notice was valid: those come from the contract and from advice.

Applications for payment Documents and certificates Cost control Payment timetable calculator

Where to start, on Monday

Take your last three applications and answer four questions on each: was there a notified sum, was a payment notice served within five days of the due date, was a pay less notice served before the deadline, and has the final date passed. That is the whole test, and it takes about ten minutes per application if the records are to hand.

If the answer suggests you have one, take advice before serving anything. This is a fast process with a binding outcome and the drafting of the notice of adjudication matters. Everything above is the shape of the position, not advice on yours.

Asked most often

The follow-up questions.

The notice timetable this all turns on is in pay less notices, and the timetable behind them.

What is a smash and grab adjudication?+
An adjudication brought on the basis that the payer served no valid payment notice and no valid pay less notice in time, so section 111 requires it to pay the notified sum in full by the final date for payment regardless of what the work was worth. The adjudicator decides on the notices alone and never reaches the valuation.
Can the payer bring a true value adjudication afterwards?+
Yes. A payer that has paid a notified sum it disputes can start its own adjudication on the true value of the work and recover any overpayment. The important sequencing point is that it generally has to pay the notified sum first rather than raising valuation as a defence to the smash and grab, which is where the commercial value of the exercise comes from.
What can defeat a smash and grab adjudication?+
Most often an attack on the application itself. If your application was not made under the right clause, on the right date, in the right form, or did not state the basis of calculation, there is no notified sum and the claim collapses. A valid pay less notice served in time also defeats it, as does the absence of any payment notice capable of fixing a notified sum.
Is a smash and grab worth bringing?+
It depends on the sum and the relationship. You generally cannot recover your own legal costs because of section 108A, so the amount has to comfortably exceed the cost of getting it, though fee-capped low value procedures change that on smaller debts. It is also a relationship event with no polite version, and it invites forensic scrutiny of your own records.
Does winning a smash and grab mean the work was worth that much?+
No, and it is worth being clear about that. It means the payer failed to serve the notices the Act requires to reduce the sum. What you win is the cash now, the burden of the next reference on the other side, and a better negotiating position while you hold the money. The valuation question remains open and can be decided against you later.
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