Jerram Falkus Construction Ltd V Fenice Investments Inc
Technology and Construction Court
21 July 2011
The works were delayed and the parties fell out as to the causes of that delay. There were three adjudications between the parties. The dispute raised by the contractor in the court proceedings it brought was in respect of delays. Clause 1.9.4 of the contract provided that where an adjudicator gives his decision on a dispute after the date of submission of the contractor’s final account and final statement or the employer's final account and final statement, if either party wishes to have that dispute or difference determined by arbitration or legal proceedings, it may commence arbitration or legal proceedings within 28 days of the date on which the adjudicator gives his decision. The employer contended that the adjudicator’s decision in the third adjudication rejecting the contractor's claim that time was at large and/or that it was entitled to anything further arising in respect of delay was not the subject of any subsequent arbitration or legal proceedings with the result that it was conclusive in accordance with clause 1.9.4.
Coulson J accepted the employer’s contention and held that the adjudicator’s decision conclusive in accordance with clause 1.9.4. It was plain that the dispute before the court raised all of the same issues argued in front of the adjudicator (and involved the citation to the court and to the adjudicator of the same authorities). Clause 1.9.4 had been triggered since the third adjudication took place after the final account and final statement had been submitted. The purpose of clause 1.9 was to provide for various circumstances in which the position between the parties could become conclusive following the provision of the final account, thereby precluding any further dispute. Clause 1.9.4 had to be read in that context, provided a deadline beyond which something, namely the decision in an adjudication started after the provision of the final account, became conclusive and constituted a "last chance" since if it were not a provision relating to conclusivity, it would not be part of clause 1.9. If clause 1.9.4 did not provide some form of deadline beyond which the result of a post-final account adjudication could not be challenged, it was entirely redundant.