So much for the campaign for plain English!

United Kingdom

This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.

Has anyone managed to read section 110 (1D) of the new Construction Act (the “Act”) in one breath and make sense of it at the same time? Have a go…..

“The requirement in subsection (1)(a) to provide an adequate mechanism for determining when payments become due under the contract is not satisfied where a construction contract provides for the date on which a payment becomes due to be determined by reference to the giving to the person to whom the payment is due of a notice which relates to what payments are due under the contract.”

Having read it a couple of times in the context of the overall Act, it becomes clear, rather slowly and painfully, that new section 110 (1D) outlaws “pay when certified” clauses.

Therefore, in lay terms, the effect of section 110 (1D), is to go beyond Section 113 of the old Act which prohibits “pay when paid” clauses to extend the range of prohibited conditional payments in a construction contract to include “pay when certified” clauses.

For pity’s sake, why didn’t the draftsman just say so?!

This is not the only instance of the draftsman failing to use plain English. It is amusing to note the tactful comment of Mr Justice Coulson in his book Construction Adjudication (2nd ed.,2011) on the difference between sections 110 (1A) and 110(1C): “it is thought that these provisions are likely to fall to be considered by the courts sooner rather than later”.