Employer bears burden of proof when recovering overpayment in NEC3

In a recent Scottish case, the Outer House of the Court of Session held that the employer (SGL Carbon Fibres) bore the burden of proof when seeking to recover alleged overpayments to the contractor (RBG). Although this decision is persuasive only, employers should take note.  

The parties were operating under the NEC3 EEC June 2005 (Option C). They departed from the NEC payment mechanism by allowing the employer's quantity surveyor to approve the amount that the contractor intended to claim before he submitted his monthly application for interim payment (under the NEC3, the amount due at each assessment date is to be assessed by the project manager). The court decided that this departure did not negate any obligation on the employer to prove alleged overpayment, just as the contractor holds the burden when seeking payment in addition to the amount that has been certified. Full details of the case can be found in SGL Carbon Fibres Ltd v RBG Ltd [2012] ScotCS CSOH 19.          

Ron Plascow, Stuart Thompson and Katherine Souter are giving a seminar entitled "NEC Z clauses: are they necessary?" at the Mills & Reeve London office on 9 February (4-6pm) and at the Mills & Reeve Norwich office on 23 February (8-10am).