Marc Gilbard 2009 Settlement Trust (trustees of) v OD Developments and Projects Ltd

Marc Gilbard 2009 Settlement Trust (trustees of) v OD Developments and Projects Ltd

Clause 1.9.3 of the JCT contract allows only one set of proceedings, commenced within 28 days of the Final Certificate, to challenge its conclusivity. Any subsequent proceedings, including adjudication, commenced outside the 28-day period cannot challenge the Final Certificate, which is then conclusive evidence except as to matters raised in the timely proceedings. The defendant’s right to adjudicate is not fettered, but is contractually limited to the 28-day period for challenging the Final Certificate.

Parties
Claimant: The Trustees of the Marc Gilbard 2009 Settlement Trust; Defendant: OD Developments and Projects Limited
Jurisdiction
England and Wales
Judgment Date
22 January 2015
Procedural Posture
Civil (construction Contract Dispute) / Judgment on Part 8 Proceedings for Declaratory Relief
Outcome
Declaration granted as to the interpretation of clause 1.9.3; declaration as to sums due under the Final Certificate declined.
Legal Topics
Final Certificate, Conclusive Evidence Clauses, Adjudication Rights, Interpretation of Contractual Terms
Construction Law Contract Law Final Certificate Conclusive Evidence Clauses Adjudication Rights Interpretation of Contractual Terms

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Parties

The Trustees of the Marc Gilbard 2009 Settlement Trust

Claimant

OD Developments and Projects Limited

Defendant

Procedural Posture

Civil (construction Contract Dispute) / Judgment on Part 8 Proceedings for Declaratory Relief

Legal Issues

  1. 1 Whether the Final Certificate is conclusive evidence in subsequent adjudication proceedings not commenced within 28 days
  2. 2 Whether a party can commence adjudication proceedings after issuing court proceedings within the 28-day period
  3. 3 Proper interpretation of clause 1.9.3 of the JCT Standard Building Contract

Ratio Decidendi

Clause 1.9.3 of the JCT contract allows only one set of proceedings, commenced within 28 days of the Final Certificate, to challenge its conclusivity. Any subsequent proceedings, including adjudication, commenced outside the 28-day period cannot challenge the Final Certificate, which is then conclusive evidence except as to matters raised in the timely proceedings. The defendant’s right to adjudicate is not fettered, but is contractually limited to the 28-day period for challenging the Final Certificate.

Court Disposition

Declaration granted as to the interpretation of clause 1.9.3; declaration as to sums due under the Final Certificate declined.

Orders

  • The Final Certificate dated 3 December 2013 is not conclusive evidence in respect of the matters raised in the existing Part 7 claim, but is conclusive evidence in any other proceedings commenced after the 28-day period.
  • No declaration granted in respect of the sums allegedly due under the Final Certificate.