What is a Pay Less Notice?

Christopher Ray • 30 June 2021

And what to do if you receive one

Pay Less Notices can really sting when you receive one. Responding in the correct ways is essential.

So where on Earth did the PLN (“Pay Less Notice”) come from? Players from across the construction industry have reported an increase in receiving these nasty notices without warning since the beginning of the pandemic. Some had never received a PLN before.


They’re creating all sorts of effects across the industry and it’s important you’re well equipped to deal with them since the better-informed parties are using them to their advantage.


If you run or you’re responsible for the contractual obligations of a construction project, we’ll show you what a PLN is, why they’re issued, and how to handle one if you receive one.



What is a PLN?

Typically in construction contracts, on a monthly basis you will issue an Application for Payment to your client. This lets your client know how much you believe they owe you for the works carried out in that period. In return, the client will issue their assessment, normally called the Certified Sum.


However, prior to the payment being remitted, if your client wishes to pay you less than the Certified Sum, then they must issue you with a PLN.


The PLN must clearly prescribe exactly why your client believes it is acceptable to pay you less than the Certified Sum. You must now prepare yourself that a previously agreed payment will be reduced or not paid at all.


If served on you in the correct way, then the amount owed to you has been legally reduced. If the PLN has been served properly but you disagree with its content, then you will likely be at the beginning of a formal dispute and you’re likely to need professional advice.



What are some of the reasons why PLNs are served?

The days of agreeing a contract up front, sticking it in the drawer and relying on the relationship with your client are changing quickly. Instead contract parties are attempting to use a variety of mechanisms on each other to improve their positions. The PLN is an increasingly common occurrence. They’re being used as:


  • Tools to manipulate the cashflow of one of the contract parties;
  • A trigger to encourage the recipient into a desired action;
  • Tools to rectify mistakes; and
  • A replacement for the main contractor’s valuation



But if the construction industry is as friendly with itself as it always has been, what are the reasons why we’re seeing more PLNs? Most construction players had never seen one until 2020. Here are some of the reasons we’re seeing these notices being served:


  • Works on-site are found to be faulty and the PLN will encourage rectification;
  • If a contracting party has withdrawn from site due to COVID, their client may issue a PLN as leverage to force the contracting party to return to site or try and levy unsubstantiated costs;
  • If a contractor wants to remove a sub-contractor from site permanently, but contractually that is difficult, then the issuance of a PLN can cause that subbie to walk off-site playing perfectly into the hands of the contractor;
  • If a contractor feels that a subcontractor is underperforming, then the issuance of a PLN may trigger that sub-contractor to perform;
  • A series of PLNs may have been issued from higher up the supply chain, and it is simply being passed down the chain;
  • The issuer of the PLN may have cashflow issues and needs to find a way of preserving cash wherever possible;
  • The issuer of the PLN knows that the recipient is unsophisticated in their management of contractual obligations. Their likely response will be an emotional reaction, which will likely weaken their contractual position unintentionally.
  • When a valuation has been issued and the PLN issuer realises they’ve paid too much.


We have seen a couple of cases however, when the receipt of a PLN can instead be helpful (although these are rare). For example where a glazing subcontractor had purchased windows ready to fit at the end of May 2021. The site wasn’t ready and the installation was delayed until June through no fault of his own. The glazing company asked if the windows could be delivered to site but there simply wasn't enough room. This had a huge impact on the sub-contractor's cashflow as he was not entitled to be paid for materials when off-site. The client wasn't comfortable paying for the windows without them being in their possession should the sub-contractor run into financial difficulty. An agreement was made where the value of the windows was certified in May's valuation but the client had the option of issuing a PLN should the windows not have arrived as promised. This is less about PLNs being used in a positive way, and more a great example of how relationship, trust and communication are so important in the supply chain.



Why have PLNs become so important?

The PLN has been a feature of construction contracts for years now. Yet most construction businesses had never seen one in the wild until 2020.


They’ve become more common since the start of the Pandemic as it gives a paying party a “legal” way of paying less.


Unsurprisingly, the trend for issuing PLNs has started at the top of the construction food chain in the developer and main contractor world, and is now filtering down to the subcontractors (and sub-sub-contractors).


If you’re owed money in a construction project, then as a potential recipient of a PLN it’s important that you understand their background and how to respond if you receive one. As is often the case in construction, if you don’t follow the provisions of your underlying contract, then you will hugely hurt your chances of success irrespective of whether you’re in the right or not.


We’ve recently dealt with clients and situations where a PLN has been received. The natural reaction has been to respond emotionally to this new type of challenge to their payment i.e. take guys off-site, minimise costs, minimise risk exposure. Whilst intuitively this might feel like the right thing to do, in actual fact you could have just been completely sucked into the trap that the issuer wanted you to fall into i.e. not acting in a manner that the contracts says you should and you're now ripe to be taken advantage of.


Unfortunately this is where things often get messy and our work normally turns into damage-limitation rather than carefully dealing with the initial notice.



What should you do if you receive a PLN?

If you receive a Pay Less Notice, then it’s essential you take your next step in accordance with the contract. Don’t be tempted to react emotionally thinking you can fight fire with fire. If this is how you choose to react, then don’t be surprised when the next thing that happens is you receive a Default Notice because technically-speaking you’re now not performing in a contractual manner.


The first thing to check is if the PLN has been issued in accordance with the underlying contract. If you’re in any doubt as to do what next, just get in contact with our construction team who would be delighted to discuss your particular situation construction@branta.co.uk


Branta works with a range of construction businesses in the UK from small trades and sub-contractors to national main contractors and developers. We help you commercially manage your construction contracts with our depth of skills and experience.  Find out more about what we do by downloading our factsheet here


What is your recent experience of PLNs? Let us know in the comments below.

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