An unpaid party may choose not to adjudicate. Arbitration and litigation remain open, and some disputes are more suitably determined there. The non-paying party may not, however, contract out of CIPAA, or disregard a reference in the expectation that it will lapse.
The unpaid party may proceed with the adjudication, including by paying the non-paying party’s share of the fees where that is required for the reference to continue. An arbitration agreement does not exclude CIPAA. It provides a further forum. It does not displace adjudication.
The limits of a response
A non-paying party may defend the claim and raise a set-off. The set-off may reduce the claim, including to nil, and costs may follow the event. The response is not a means of recovering a positive back-charge, and CIPAA is not a procedure for the recovery of liquidated damages as though they were payment for work done.
Lack of an interim certificate is not, by itself, a reason to say the claim is too early. Section 5 does not require a certified progress claim before a payment claim can be served.
These notes describe the legislation and the scope of our usual instructions. They are not advice on a particular contract. A consultation may be arranged here.