WW Gear Construction Ltd V McGhee Group Ltd

WW Gear Construction Ltd V McGhee Group Ltd

It was not appropriate that the court should make a declaration as to the true construction of the trade contract sought by the construction manager
 
 
WW Gear Construction Ltd V McGhee Group Ltd
Technology and Construction Court
Edwards-Stuart J
1 June 2012
 
 
The trade contract was an amended form of the JCT Trade Contract (TC/C). The current adjudication was the fourth and was begun by the trade contractor whose claims included some based on variations. The adjudication was still on foot at the time of the court hearing and the decision was due to be issued shortly after the date of issue of the judgment in the instant case. The construction manager commenced the court proceedings to obtain a declaration as to the true construction of some of the provisions of the trade contract relevant to the outcome of the adjudication.
 
Edwards-Stuart J held that it was not appropriate that the court should make a declaration as to the true construction of the trade contract sought by the construction manager. The court had jurisdiction to grant a declaration as was illustrated by Paragraph 9.4.1 of the TCC Guide. The power to do so was very wide and there was no relevant fetter that would apply to this type of case. However, where there was an ongoing adjudication, the court should intervene only rarely where it was appropriate to do so. It would have been an unwarranted interference with the adjudication process for the court to have intervened to make a declaration. The statutory time limit for the completion of an adjudication was only 28 days. This meant that the court might well not be in a position to grant the requested declaration until very shortly before the adjudicator was required to make his decision. Such a short period of time was an unacceptable imposition on an adjudicator and one that may well result in unfairness, misunderstandings or mistakes, not least because the parties might well have no right or opportunity to make submissions to the adjudicator in the light of the judgment and a sufficient reason by itself for it not being appropriate to make a declaration in the instant case. Whilst this was not a conclusion that was intended to be of general application in cases of this sort, it would be a rare case in which the court would be likely to make a declaration in circumstances such as this with the risk of causing this type of injustice.
 
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