Housing Grants, Construction and Regeneration Act 1996

Valid from 01/05/1998

107 Provisions applicable only to agreements in writing.E+W+S

(1)The provisions of this Part apply only where the construction contract is in writing, and any other agreement between the parties as to any matter is effective for the purposes of this Part only if in writing.

The expressions “agreement”, “agree” and “agreed” shall be construed accordingly.

(2)There is an agreement in writing—

(a)if the agreement is made in writing (whether or not it is signed by the parties),

(b)if the agreement is made by exchange of communications in writing, or

(c)if the agreement is evidenced in writing.

(3)Where parties agree otherwise than in writing by reference to terms which are in writing, they make an agreement in writing.

(4)An agreement is evidenced in writing if an agreement made otherwise than in writing is recorded by one of the parties, or by a third party, with the authority of the parties to the agreement.

(5)An exchange of written submissions in adjudication proceedings, or in arbitral or legal proceedings in which the existence of an agreement otherwise than in writing is alleged by one party against another party and not denied by the other party in his response constitutes as between those parties an agreement in writing to the effect alleged.

(6)References in this Part to anything being written or in writing include its being recorded by any means.

Valid from 01/05/1998

PaymentE+W+S

109 Entitlement to stage payments.E+W+S

(1)A party to a construction contract is entitled to payment by instalments, stage payments or other periodic payments for any work under the contract unless—

(a)it is specified in the contract that the duration of the work is to be less than 45 days, or

(b)it is agreed between the parties that the duration of the work is estimated to be less than 45 days.

(2)The parties are free to agree the amounts of the payments and the intervals at which, or circumstances in which, they become due.

(3)In the absence of such agreement, the relevant provisions of the Scheme for Construction Contracts apply.

(4)References in the following sections to a payment under the contract include a payment by virtue of this section.

110 Dates for payment.E+W+S

(1)Every construction contract shall—

(a)provide an adequate mechanism for determining what payments become due under the contract, and when, and

(b)provide for a final date for payment in relation to any sum which becomes due.

The parties are free to agree how long the period is to be between the date on which a sum becomes due and the final date for payment.

(2)Every construction contract shall provide for the giving of notice by a party not later than five days after the date on which a payment becomes due from him under the contract, or would have become due if—

(a)the other party had carried out his obligations under the contract, and

(b)no set-off or abatement was permitted by reference to any sum claimed to be due under one or more other contracts,

specifying the amount (if any) of the payment made or proposed to be made, and the basis on which that amount was calculated.

(3)If or to the extent that a contract does not contain such provision as is mentioned in subsection (1) or (2), the relevant provisions of the Scheme for Construction Contracts apply.

111 Notice of intention to withhold payment.E+W+S

(1)A party to a construction contract may not withhold payment after the final date for payment of a sum due under the contract unless he has given an effective notice of intention to withhold payment.

The notice mentioned in section 110(2) may suffice as a notice of intention to withhold payment if it complies with the requirements of this section.

(2)To be effective such a notice must specify—

(a)the amount proposed to be withheld and the ground for withholding payment, or

(b)if there is more than one ground, each ground and the amount attributable to it,

and must be given not later than the prescribed period before the final date for payment.

(3)The parties are free to agree what that prescribed period is to be.

In the absence of such agreement, the period shall be that provided by the Scheme for Construction Contracts.

(4)Where an effective notice of intention to withhold payment is given, but on the matter being referred to adjudication it is decided that the whole or part of the amount should be paid, the decision shall be construed as requiring payment not later than—

(a)seven days from the date of the decision, or

(b)the date which apart from the notice would have been the final date for payment,

whichever is the later.

112 Right to suspend performance for non-payment.E+W+S

(1)Where a sum due under a construction contract is not paid in full by the final date for payment and no effective notice to withhold payment has been given, the person to whom the sum is due has the right (without prejudice to any other right or remedy) to suspend performance of his obligations under the contract to the party by whom payment ought to have been made (“the party in default”).

(2)The right may not be exercised without first giving to the party in default at least seven days’ notice of intention to suspend performance, stating the ground or grounds on which it is intended to suspend performance.

(3)The right to suspend performance ceases when the party in default makes payment in full of the amount due.

(4)Any period during which performance is suspended in pursuance of the right conferred by this section shall be disregarded in computing for the purposes of any contractual time limit the time taken, by the party exercising the right or by a third party, to complete any work directly or indirectly affected by the exercise of the right.

Where the contractual time limit is set by reference to a date rather than a period, the date shall be adjusted accordingly.

113 Prohibition of conditional payment provisions.E+W+S

(1)A provision making payment under a construction contract conditional on the payer receiving payment from a third person is ineffective, unless that third person, or any other person payment by whom is under the contract (directly or indirectly) a condition of payment by that third person, is insolvent.

(2)For the purposes of this section a company becomes insolvent—

(a)on the making of an administration order against it under Part II of the M3Insolvency Act 1986,

(b)on the appointment of an administrative receiver or a receiver or manager of its property under Chapter I of Part III of that Act, or the appointment of a receiver under Chapter II of that Part,

(c)on the passing of a resolution for voluntary winding-up without a declaration of solvency under section 89 of that Act, or

(d)on the making of a winding-up order under Part IV or V of that Act.

(3)For the purposes of this section a partnership becomes insolvent—

(a)on the making of a winding-up order against it under any provision of the Insolvency Act 1986 as applied by an order under section 420 of that Act, or

(b)when sequestration is awarded on the estate of the partnership under section 12 of the M4Bankruptcy (Scotland) Act 1985 or the partnership grants a trust deed for its creditors.

(4)For the purposes of this section an individual becomes insolvent—

(a)on the making of a bankruptcy order against him under Part IX of the M5Insolvency Act 1986, or

(b)on the sequestration of his estate under the Bankruptcy (Scotland) Act 1985 or when he grants a trust deed for his creditors.

(5)A company, partnership or individual shall also be treated as insolvent on the occurrence of any event corresponding to those specified in subsection (2), (3) or (4) under the law of Northern Ireland or of a country outside the United Kingdom.

(6)Where a provision is rendered ineffective by subsection (1), the parties are free to agree other terms for payment.

In the absence of such agreement, the relevant provisions of the Scheme for Construction Contracts apply.

Valid from 01/05/1998

115 Service of notices, &c.E+W+S

(1)The parties are free to agree on the manner of service of any notice or other document required or authorised to be served in pursuance of the construction contract or for any of the purposes of this Part.

(2)If or to the extent that there is no such agreement the following provisions apply.

(3)A notice or other document may be served on a person by any effective means.

(4)If a notice or other document is addressed, pre-paid and delivered by post—

(a)to the addressee’s last known principal residence or, if he is or has been carrying on a trade, profession or business, his last known principal business address, or

(b)where the addressee is a body corporate, to the body’s registered or principal office,

it shall be treated as effectively served.

(5)This section does not apply to the service of documents for the purposes of legal proceedings, for which provision is made by rules of court.

(6)References in this Part to a notice or other document include any form of communication in writing and references to service shall be construed accordingly.

Valid from 01/05/1998

116 Reckoning periods of time.E+W+S

(1)For the purposes of this Part periods of time shall be reckoned as follows.

(2)Where an act is required to be done within a specified period after or from a specified date, the period begins immediately after that date.

(3)Where the period would include Christmas Day, Good Friday or a day which under the M6Banking and Financial Dealings Act 1971 is a bank holiday in England and Wales or, as the case may be, in Scotland, that day shall be excluded.

Valid from 01/05/1998

117 Crown application.E+W+S

(1)This Part applies to a construction contract entered into by or on behalf of the Crown otherwise than by or on behalf of Her Majesty in her private capacity.

(2)This Part applies to a construction contract entered into on behalf of the Duchy of Cornwall notwithstanding any Crown interest.

(3)Where a construction contract is entered into by or on behalf of Her Majesty in right of the Duchy of Lancaster, Her Majesty shall be represented, for the purposes of any adjudication or other proceedings arising out of the contract by virtue of this Part, by the Chancellor of the Duchy or such person as he may appoint.

(4)Where a construction contract is entered into on behalf of the Duchy of Cornwall, the Duke of Cornwall or the possessor for the time being of the Duchy shall be represented, for the purposes of any adjudication or other proceedings arising out of the contract by virtue of this Part, by such person as he may appoint.