Retention Dispute
RemedialHourlyFor Subcontractors
Where your retention is withheld or the certificate releasing it was never issued, I establish the entitlement and draft the demand that pursues it.
The problem
Retention is designed to be forgotten: small enough not to fight over in any one month, old enough by release date that the people who knew the job have moved on. The second half in particular dies quietly, waiting on a certificate nobody upstream had a reason to issue. But retention is not goodwill; it is your money held on conditions written in the contract: what triggers release, when each half falls due, and what happens when the certificate the release depends on never comes. Establishing that position is the whole dispute.
The solution
I work out what the contract actually gives you: what triggers each half of the release, the dates each fell due on the facts, and the answers to the standard excuses, including release terms that depend on a certificate nobody issued and conditions that fail the Construction Act. Then I draft the recovery: the demand that sets out the entitlement, the correspondence that answers the excuses, and where the money still does not move, a position built to hand to whoever conducts an adjudication.
What you receive
Your retention stops being a line item that ages and becomes a claim with a date on it: the position set out in a detailed written report, the excuses answered, and the file built to hand to whoever conducts an adjudication if payment still does not come.
The Handover Pack accompanies the work with its dates and sources, likely outcomes and responses, scope boundaries and ready-to-send correspondence where needed.
Turnaround: the timetable is agreed in writing at scoping and then kept.
The working days start when the agreed scope and required inputs are available. Optional items do not hold the start unless the agreed scope says otherwise.
How it works
You send me the paperwork
The list below puts the release conditions and the facts side by side.
- A
The executed contract and every amendment
EssentialWithout it: There is nothing to test release against, so the demand has no contractual basis to stand on.
Where to find it: The commercial folder or the order email.
Why I need it: Release turns entirely on the terms
- B
The retention provisions and the defects provisions
EssentialWithout it: The two get run together, and a sum that has actually fallen due under one clause is left withheld against the other.
Where to find it: The commercial folder or the order email.
Why I need it: The two get conflated and must be read apart
- C
The practical completion certificate or its equivalent
ImportantWithout it: The first release cannot be pinned to a date, so it cannot be turned into a demand with a date on it.
Where to find it: Issued by the contract administrator or employer's agent; the email trail around handover is where they usually sit.
Why I need it: The usual first moiety trigger
- D
The certificate of making good defects, or the position on it
ImportantWithout it: The second release is treated as not yet due, and stays out of the sum claimed even where it has actually fallen due.
Where to find it: Issued by the contract administrator or employer's agent; the email trail around handover is where they usually sit.
Why I need it: The usual second moiety trigger
- E
Every valuation, application and certificate from the start
EssentialWithout it: The percentage and any cap cannot be checked valuation by valuation, and the exact point the error crept in cannot be found.
Where to find it: Your QS's file of applications and certificates, from the first valuation to the last, not just the recent ones.
Why I need it: Retention is rebuilt across the whole life, not sampled
- F
The payment history, including anything released already
EssentialWithout it: It cannot be shown what is actually still owed, so the demand risks asking again for money already released.
Where to find it: Your accounts package or the QS's account file for the job.
Why I need it: What has and has not been paid
- G
Any notice given for withholding retention
EssentialWithout it: The withholding cannot be tested against its own notice requirement, and an invalid withholding can pass unchallenged.
Where to find it: The pay less notice or withholding notice itself, or the email it was served under.
Why I need it: A withholding usually has to be notified
- H
Any defects list or schedule relied on
ImportantWithout it: The withholding stands untested against any actual list, and the sum held can be compared to nothing.
Where to find it: Whatever the other side has sent setting out the defects: a snagging list, a schedule, or an email naming them.
Why I need it: What is actually said to be outstanding
- I
Your own cost of putting right each item on that list
ImportantWithout it: Every item on the other side's list is unvalued, so the sum withheld is set against nothing and the comparison that carries the work is not made.
Where to find it: Your own cost records for the remedial work: labour allocation sheets, materials invoices, plant hire, and any subcontractor or specialist invoice for putting the item right.
Why I need it: The review values the list on your figures, and that valuation is the comparison the work turns on
Copies are fine. Send what you have and I'll tell you what's missing. Download the client request PDF or editable Word version to pass to whoever holds the files.
Retention Terms Confirmed
The percentage, cap, release triggers and periods are taken from the executed contract before anything is calculated, so the demand rests on the real terms.
- A
You confirm the facts on the ground
When the works completed, when defects were made good, and what certificates exist or don't.
I establish the release position
What the contract requires for each half, what has happened on the facts, and when each sum fell due.
Demand Fully Traced
Every sum demanded traces to the analysis and anything not yet due is stated as not yet due, so the demand cannot be picked apart.
You demand in your own name
The demand and everything after it goes from you; I draft and you send.
I answer the standard defences
The missing certificate, the upstream conditions, the vanishing employer: each met with the contract and the Act.
I diarise the second moiety
The end of the defects period, the certificate the second half waits on and the date it falls due all go in your diary as well as mine before the file closes, so the same money is not lost twice.
I turn the retention into a claim with a date
Free Service Pack
A step-by-step Handbook, with the templates and working documents you need to carry out the work it covers yourself. You supply your own project information and records.
Follow the Handbook's scope and stopping points, and obtain independent advice where required. The pack is not project-specific advice or independent sign-off.
