Where the contract obliges the contractor to supply information such as health and safety documentation, manuals and as-built drawings, may the contractor withhold it on the ground of non-payment, and what further remedies does the employer's failure to pay give?
A contractor cannot simply hold back documents it must supply, but non-payment gives it a right to suspend that reaches the documents, along with damages, interest and, in a serious case, termination.
A contractor cannot simply withhold information it is contractually bound to supply, but non-payment gives it a statutory right to suspend performance, including supplying documents, on seven days notice, a claim for damages and interest, and, where the breach is serious or persistent, a right to terminate for repudiation, as Alan Auld v Rick Pollard shows for persistent late payment
A contractor cannot simply withhold information it is contractually bound to supply, but non-payment gives it a statutory right to suspend performance, including supplying documents, on seven days' notice under section 112 of the Housing Grants, Construction and Regeneration Act 1996, the right ending when payment is made; JCT 2011 lets the contractor suspend part only, so it may hold back as-built drawings and manuals while continuing other work, and the ICE and Engineering and Construction Contract forms leave the contractor to rely on the statute. Non-payment is also a breach giving a claim for damages, usually interest, and, where serious, a right to terminate: the JCT forms allow termination on a fourteen-day warning notice, and the Engineering and Construction Contract where a certified sum is unpaid for thirteen weeks. Where there is no termination provision the contractor relies on common-law termination for repudiation, which calls for care, since a single missed payment may not be repudiatory. In Alan Auld Associates Ltd v Rick Pollard Associates persistent late payment across nineteen invoices, though payment would eventually come, was so serious as to be a repudiatory breach.
| No simple refusal | A contractor cannot just withhold information it must supply |
| Statutory suspension | Section 112 lets it suspend, including the documents, on seven days notice |
| Damages and interest | Non-payment is a breach; late payment usually gives interest |
| Termination | JCT on a fourteen-day notice; ECC where a certified sum is unpaid for thirteen weeks |
| Repudiation | Persistent serious late payment can be repudiatory (Alan Auld) |
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