The withholding notice by the employers agent and unqualified contract administrator, simply stated the following
"our client has experienced extensive problems with there plumbing a report shall follow and I confirm it is our intention with withhold the final invoice"
The notice come completely out the blue, no prior notice and or issued raised, the employer has been in occupation since January 2011 at the property.
I commenced investigating the matter, a meeting took over a month to arrange to simply get access to view the "extensive problems".
I investigated the issues, and they were to say the least minimal for example;
Tap dripped for approx 12 seconds after turning off
The shower valve had sheared off - This was a free issue fitting
Alleged leak to underfloor heating system, this was installed, designed and manufactured by a manufacturer and commissioned in November 2010.
We offered to resolve them but the employers agent was always putting up reasons to prevent us from resolving.
I then received an email stating that I am clearly not interested in resolving the issues, I have over 14 emails chasing them and attempting to make arrangements to resolve the issue.
I am not a qualified Building Surveyor but have been doing this job for over 10 years now.
A withholding notice is a function under the Housing Grants, Construction and Regeneration Act 1996 as brought into law by the labour government at the time.
A couple of points, I note:
Failure to provide an effective notice means that the party seeking to rely on
the notice is denied the right to deduct money by way of withholding
Section 111 (2) of the Act states 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.
Finally a notice must be issued within a timeline under the final payment date (could also be refereed to as the payment due date, unless noted otherwise)
The Act does not state precise wording and there are many cases heard in court where the sitting judge at the time states the issuing party must provide detailed and concise information to the beneficiary of the notice.
Under the Construction and Engineering disputes pre action protocol guidelines, we have commenced proceedings which essentially means, we would be lucky to be in court by month five of the proceedings, but we are willing to stick with this case.
We are two months into the process, wish me luck.....
Some good links
Witholding notices http://www.thkp.co.uk/media/bulletins-new/Withholding%20Notices%20-%20June%2008%20Newsflash.pdf
Witholding Notice Template http://www.arvsurveying.co.uk/withholdingnotice.html?gclid=COz1rMyZ7KkCFQMLfAodOW4Obg
Witholding Notices http://www.rixandkay.co.uk/sussex-solicitors-blogs-news/withholding-notices-in-construction-disputes-some-points-to-note.html
