Marc Gilbard 2009 Settlement Trust (trustees of) v OD Developments and Projects Ltd [2015] EWHC 70 (TCC) (22 January 2015)

Marc Gilbard 2009 Settlement Trust (trustees of) v OD Developments and Projects Ltd [2015] EWHC 70 (TCC) (22 January 2015)

Clause 1.9.3 of the JCT contract allows only one set of proceedings (adjudication, arbitration, or court) commenced within 28 days of the Final Certificate to challenge it; any subsequent proceedings, including adjudication, commenced after the 28-day period cannot challenge the Final Certificate, which is then conclusive evidence except as to matters raised in the timely proceedings.

Citation
[2015] EWHC 70 (TCC)
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
Part 8 Proceedings for Declaratory Relief / Judgment Following Hearing on Interpretation of Contract Clause
Outcome
Declaration granted in favour of the claimant as to the interpretation of clause 1.9.3; no declaration granted as to sums due under the Final Certificate.
Legal Topics
Final Certificate Conclusivity, JCT Standard Building Contract, Adjudication Rights, Interpretation of Conclusivity Clauses
Construction Law Contract Law Final Certificate Conclusivity JCT Standard Building Contract Adjudication Rights Interpretation of Conclusivity Clauses

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Parties

The Trustees of the Marc Gilbard 2009 Settlement Trust

Claimant

OD Developments and Projects Limited

Defendant

Procedural Posture

Part 8 Proceedings for Declaratory Relief / Judgment Following Hearing on Interpretation of Contract Clause

Legal Issues

  1. 1 Whether a party can commence adjudication proceedings challenging a Final Certificate more than 28 days after its issue when Part 7 proceedings have already been commenced within the 28-day period
  2. 2 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 (adjudication, arbitration, or court) commenced within 28 days of the Final Certificate to challenge it; any subsequent proceedings, including adjudication, commenced after the 28-day period cannot challenge the Final Certificate, which is then conclusive evidence except as to matters raised in the timely proceedings.

Court Disposition

Declaration granted in favour of the claimant as to the interpretation of clause 1.9.3; no declaration granted as to sums due under the Final Certificate.

Orders

  • Declaration that 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.