Marc Gilbard 2009 Settlement Trust v OD Developments and Projects Ltd (TCC - 22.1.2015)
The final certificate issued under JCT 2005 was not conclusive evidence in in the proceedings brought by the contractor within 28 days of its issue challenging it but would have been conclusive evidence in the adjudication it proposed commencing a year after its issue
22 January, 2015
MARC GILBARD 2009 SETTLEMENT TRUST v OD DEVELOPMENTS AND PROJECTS LTD
Technology and Construction Court
22nd January 2015
Clause 1.9.3 of JCT 2005 provided that if any adjudication, arbitration or other proceedings were commenced within 28 days after the final certificate’s issue, the final certificate was to have effect as conclusive evidence save only in respect of the matters to which those proceedings related. A final certificate was issued which showed a sum due to the employer. The contractor commenced court proceedings challenging the certificate within 28 days of its issue and intimated that it wished to commence adjudication proceedings bringing the same challenge a year after its issue of the certificate. The employer relied on clause 1.9.3 in contending that the contractor was not entitled to commence an adjudication and issued court proceedings for a declaration to that effect.
Coulson J made a declaration to the effect sought by the employer.
The proper construction of clause 1.9.3 was that a party wishing to challenge the final certificate must do so in one set of proceedings. It is those (chosen) proceedings which constitute the only vehicle by which the final certificate is capable of being challenged.
If, contrary to this conclusion, the words of clause 1.9.3 could have more than one interpretation, business common sense dictated that the right interpretation is that the contract provides for just one set of proceedings started within 28 days of the final certificate’s issue in which it can be challenged because (i) The underlying purpose of clause 1.9.3 is to provide clarity and certainty and (ii) The parties would not have envisaged incurring the costs of subsequent proceedings, issued months or years after the initial proceedings, to argue about the same matters.
There was no fettering of the contractor’s right to adjudicate “at any time” because neither party was fettered or prohibited from commencing an adjudication even at this late stage even though the final certificate would be conclusive evidence on the subjects identified under clause 1.9 by reason of the adjudication not being begun within 28 days of the certificate’s issue. To the extent that the contractor complained that it was now prohibited from challenging the final certificate in adjudication (i) That was solely as a result of its own choice and (ii) It chose deliberately not to avail itself of that right in connection with the dispute as to the certificate’s correctness.