Smash and grab, and the true value answer

"Smash and grab" is site slang, not a legal term, and it describes a narrow kind of adjudication: one where the payee says nothing about the value of the work, and everything about the paperwork.

The claim is short. A sum was notified. No valid pay less notice was served. Section 111 requires the notified sum to be paid. Pay it.

Nothing in that argument depends on whether the work was done well, whether the rates are right, or whether the application was optimistic. Those are questions for a different adjudication.

How the two questions came apart

For a period after the 2011 amendments, the position was that a payer who missed its notices was effectively bound to that valuation for the payment cycle. That produced results which felt disproportionate on large applications.

In S&T (UK) Ltd v Grove Developments Ltd [2018] EWCA Civ 2448, the Court of Appeal confirmed a sequence that has held since: the payer must first pay the notified sum, and may then commence a separate adjudication to determine the true value of the work.

Later decisions have reinforced the order rather than softened it. A payer who tries to run a true value case as a reason not to pay the notified sum will generally be told to pay, having incurred the cost of finding that out.

What this means in practice

For the payer

The notices are not administration around the edge of the valuation. They are the valuation's legal effect. A perfect assessment served late is worth less than a rough assessment served on time, which is an uncomfortable sentence for a surveyor to read and an accurate one.

If a notice has been missed, the sensible response is usually to pay, then decide whether the difference between the notified sum and your assessment justifies a true value adjudication. Sometimes it will not, and the cost is written off.

For the payee

A notice adjudication is quick and cheap because the issues are narrow. It is also temporary. Money recovered this way can be revisited in a true value adjudication, and eventually in the final account.

Treating a notice win as a permanent gain is a mistake that shows up later, usually when the cash has already been spent.

The record keeping this rewards

Notice adjudications turn on a small number of facts: what was served, when, by whom, and to whom. They are decided on documents.

The practice that loses these is not the one with a weak valuation. It is the one that cannot demonstrate, six months later, that the notice went out on the fourteenth rather than the fifteenth, because the evidence is an email in a folder belonging to somebody who has since left.

What holds up is a contemporaneous record: the certificate, its date, the person who issued it, the sum stated, and the basis attached. Ideally created as the work happened rather than reconstructed afterwards, because reconstruction is visible and it undermines everything around it.

Reducing the exposure

• Know the payment notice and pay less deadlines for every live job without having to work them out
• Serve notices even when the figure is agreed, because agreement is not a defence to a missed notice
• Attach the basis of calculation as a matter of routine
• Keep proof of service alongside the document
• Where a notice has been missed, decide quickly whether to pay and challenge, rather than resisting and doing both

None of this is about being adversarial. Most jobs never see an adjudicator. The point is that the discipline which protects you in the rare case is the same discipline that keeps the ordinary case orderly, and it costs almost nothing once it is habitual.

This is a general summary of a developing area and not legal advice. Where a notice has been missed on a significant sum, take advice on the specific facts.