Bennett v FMK Construction Ltd. [2005] EWHC 1268 (TCC) (30 June 2005)

Bennett v FMK Construction Ltd. [2005] EWHC 1268 (TCC) (30 June 2005)

Clause 41A.2.2 is directory and not mandatory; adjudication proceedings commenced by notice of intention within 28 days of the final certificate prevent the certificate from being conclusive evidence in respect of matters to which those proceedings relate, even if the adjudicator resigns and is re-appointed for the same dispute.

Citation
[2005] EWHC 1268 (TCC)
Parties
Claimant: Mr. Tracy Bennett; Defendant: FMK Construction Limited
Jurisdiction
England and Wales
Judgment Date
30 June 2005
Procedural Posture
Part 8 Application for Declarations / Judgment After Hearing
Outcome
Declarations granted in part; claimant's declaration refused, defendant's first declaration granted, second declaration refused with modification.
Legal Topics
Final Certificate Conclusiveness, Adjudication Procedure, JCT Contract Interpretation
Construction Law Contract Law Final Certificate Conclusiveness Adjudication Procedure JCT Contract Interpretation

Case Brief

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Parties

Mr. Tracy Bennett

Claimant

FMK Construction Limited

Defendant

Procedural Posture

Part 8 Application for Declarations / Judgment After Hearing

Legal Issues

  1. 1 Whether the final certificate is conclusive evidence under clause 30.9.1 of the contract
  2. 2 Whether adjudication proceedings were validly commenced within 28 days of the final certificate
  3. 3 Interpretation of clauses 30.9 and 41A of the JCT contract

Ratio Decidendi

Clause 41A.2.2 is directory and not mandatory; adjudication proceedings commenced by notice of intention within 28 days of the final certificate prevent the certificate from being conclusive evidence in respect of matters to which those proceedings relate, even if the adjudicator resigns and is re-appointed for the same dispute.

Court Disposition

Declarations granted in part; claimant's declaration refused, defendant's first declaration granted, second declaration refused with modification.

Orders

  • Declaration that the adjudicator was validly appointed in the first adjudication.
  • Declaration that the final certificate issued on 11th March 2005 is, subject to its validity, conclusive evidence as provided in clause 30.9.1 save only in respect of all matters to which the first adjudication proceedings relate.