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

Case No HT-14-362[2015] EWHC 70 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 22 January 2015
Before
THE HONOURABLE MR. JUSTICE COULSON
Between
THE TRUSTEES OF THE MARC GILBARDClaimant2009 SETTLEMENT TRUSTClaimantOD DEVELOPMENTS AND PROJECTS LIMITEDDefendant
Ms Anneliese Day QC (instructed by Dentons UKMEA LLP) for ClaimantMs Camille Slow (instructed by Fenwick Elliott LLP) for DefendantHearing Hearing date: 16 January 2015
JudgmentThe Hon. Mr Justice Coulson:1.Introduction
[1]Anyone familiar with the myriad JCT Forms of Contract will know that one of the things they all have in common is the intention to ensure that, after the works have been completed, any outstanding disputes between the parties can be swiftly and finally resolved. One way in which they seek to achieve this is by the use of a Final Certificate. If the employer’s agent issues a Final Certificate, then the contractor (and occasionally the employer) has 28 days in which to challenge it. If there is no challenge, the Final Certificate becomes conclusive evidence in respect of a wide range of matters, from defects to delays to all remaining financial disputes. Because of the important effect of such Certificates, they are regularly the subject of debate. The present case is a good example.[2]The claimant employed the defendant contractor to carry out works at 32, Shepherd Street, Mayfair. The contract incorporated the JCT Standard Building Contract, Without Quantities, Revision 2 (2009). That contained Final Certificate provisions, set out in greater detail below. On 3 December 2013, the Contract Administrator, Ridge and Partners LLP, issued a Final Certificate showing a sum due from the defendant to the claimant of £232,153.54 plus VAT. On 20 December 2013, within the relevant 28 day period, the defendant issued Part 7 proceedings in the TCC disputing the validity and correctness of the Final Certificate. At the behest of the parties, those proceedings have, on any view, proceeded very slowly, with the result that, 13 months on, they are yet to fix a first Case Management Conference.[3]The defendant now wishes to refer to adjudication the matters raised in the Part 7 claim; in other words, the defendant would now like to have an adjudication, presumably with the existing litigation as some sort of fall-back arrangement if the adjudication does not resolve the disputes between the parties. The claimant contends that this is not an option that is open to the defendant and that, whilst the extant Part 7 proceedings constitute a legitimate challenge to the Final Certificate, no other proceedings could now do so, because any such proceedings would not have been commenced within 28 days of the Final Certificate. The parties having been unable to resolve this difference, so the claimant has issued Part 8 proceedings for declaratory relief as to the proper interpretation of clause 1.9, the provision dealing with the Final Certificate. Declarations are also sought in respect of the sum due under the Final Certificate itself.[2]The Terms of the Contract[4]Clause 1.9, as amended was in the following terms:
“1.9.1 Except as provided in clauses 1.9.2, 1.9.3 and 1.9.4…the Final Certificate shall have effect in any proceedings under or arising out of or in connection with this Contract (whether by adjudication, arbitration or legal proceedings) as .1 (deleted) .2 conclusive evidence that any necessary effect has been given to all the terms of this Contract which require that an amount be added to or deducted from the Contract Sum or that an adjustment be made to the Contract Sum, save where there has been any accidental inclusion or exclusion of any work, materials, goods or figure in any computation or any arithmetical error in any computation, in which event the Final Certificate shall have effect as conclusive evidence as to all other computations. .3 conclusive evidence that all and only such extensions of time, if any, as are due under clause 2.28 have been given; and .4 conclusive evidence that the reimbursement of direct loss and/or expense, if any, to the Contractor pursuant to clause 4.23 is in final settlement of all and any claims which the Contractor has or may have arising out of the occurrence of any Relevant Matters, whether such claim be for breach of contract, duty of care, statutory duty or otherwise… .3 If any adjudication, arbitration or other proceedings are commenced by either Party within 28 days after the Final Certificate has been issued, the Final Certificate shall have effect as conclusive evidence as provided in clause 1.9.1 save only in respect of the matters to which those proceedings relate. (My emphasis) .4 In the case of a dispute or difference on which an Adjudicator gives his decision on a date which is after the date of issue of the Final Certificate, if either Party wishes to have that dispute or difference determined by arbitration or legal proceedings, that Party may commence arbitration or legal proceedings within 28 days of the date on which the Adjudicator gives his decision.” .1 (deleted) .2 conclusive evidence that any necessary effect has been given to all the terms of this Contract which require that an amount be added to or deducted from the Contract Sum or that an adjustment be made to the Contract Sum, save where there has been any accidental inclusion or exclusion of any work, materials, goods or figure in any computation or any arithmetical error in any computation, in which event the Final Certificate shall have effect as conclusive evidence as to all other computations. .3 conclusive evidence that all and only such extensions of time, if any, as are due under clause 2.28 have been given; and .4 conclusive evidence that the reimbursement of direct loss and/or expense, if any, to the Contractor pursuant to clause 4.23 is in final settlement of all and any claims which the Contractor has or may have arising out of the occurrence of any Relevant Matters, whether such claim be for breach of contract, duty of care, statutory duty or otherwise… .3 If any adjudication, arbitration or other proceedings are commenced by either Party within 28 days after the Final Certificate has been issued, the Final Certificate shall have effect as conclusive evidence as provided in clause 1.9.1 save only in respect of the matters to which those proceedings relate. (My emphasis) .4 In the case of a dispute or difference on which an Adjudicator gives his decision on a date which is after the date of issue of the Final Certificate, if either Party wishes to have that dispute or difference determined by arbitration or legal proceedings, that Party may commence arbitration or legal proceedings within 28 days of the date on which the Adjudicator gives his decision.”
[5]In addition, clause 9 sets out the parties rights in respect of the settlement of disputes. The relevant provisions are in the following terms:
“Mediation 9.1 Subject to Article 7, if a dispute or difference arises under this Contract which cannot be resolved by direct negotiations, each Party shall give serious consideration to any request by the other to refer the matter to mediation. Adjudication 9.2 If a dispute or difference arises under this Contract which either Party wishes to refer to adjudication, the Scheme shall apply, subject to the following: .1 for the purposes of the Scheme the Adjudicator shall be the person (if any) and the nominating body shall be that stated in the Contract Particulars; .2 where the dispute or difference is or includes a dispute or difference relating to clause 3.18.4 and as to whether an instruction issued thereunder is reasonable in all the circumstances: .1 the Adjudicator to decide such dispute or difference shall (where practicable) be an individual with appropriate expertise and experience in the specialist area or discipline relevant to the instruction or issue in dispute; .2 if the Adjudicator does not have the appropriate expertise and experience, the Adjudicator shall appoint an independent expert with such expertise and experience to advise and report in writing on whether or not the instruction under clause 3.18.4 is reasonable in all the circumstances.”
Adjudication .1 for the purposes of the Scheme the Adjudicator shall be the person (if any) and the nominating body shall be that stated in the Contract Particulars; .2 where the dispute or difference is or includes a dispute or difference relating to clause 3.18.4 and as to whether an instruction issued thereunder is reasonable in all the circumstances: .1 the Adjudicator to decide such dispute or difference shall (where practicable) be an individual with appropriate expertise and experience in the specialist area or discipline relevant to the instruction or issue in dispute; .2 if the Adjudicator does not have the appropriate expertise and experience, the Adjudicator shall appoint an independent expert with such expertise and experience to advise and report in writing on whether or not the instruction under clause 3.18.4 is reasonable in all the circumstances.”[3]The Law[6]A number of authorities have been cited to me in respect of the parties’ competing constructions of clause 1.9. They divide into three categories: those dealing with commercial common sense as an aid to construction; those dealing with the interpretation and effect of conclusivity provisions generally; and those concerned with the interplay between such provisions and adjudication.

(i) Commercial Common Sense

[7]As to commercial common sense, it is trite law that, as Lord Reid put it in Wickman Machine Tool Sales v L Schuler AG [1974] AC 235:
“The fact that a particular construction leads to a very unreasonable result must be a relevant consideration. The more unreasonable the result, the more unlikely it is that the parties can have intended it, and if they do intend it the more necessary it is that they shall make that intention abundantly clear”
[8]This approach was re-emphasised in clear language by Lord Clarke in Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900, when he said: “The language used by the parties will often have more than one potential meaning. I would accept the submission made on behalf of the appellants that the exercise of construction is essentially one unitary exercise in which the court must consider the language used and ascertain what a reasonable person, that is a person who has all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract, would have understood the parties to have meant. In doing so, the court must have regard to all the relevant surrounding circumstances. If there are two possible constructions, the court is entitled to prefer the construction which is consistent with business common sense and to reject the other.” (ii) Conclusivity Clauses Generally[9]As to the purpose of Final Certificates and conclusive evidence clauses, the following citations are relevant:(a) Conclusivity clauses “provide some limits to uncertainties and expense of arbitration and litigation”: see Lord Denning in Agro Company Canada Ltd v Richmond Shipping (“the Simonburn”) [1973] 1 Lloyds Rep 292.(b) Conclusive evidence clauses were devised “to obviate cumbersome and painstaking enquiries to prove out-standings on running accounts…”: see VK Rajah J in the High Court of Singapore in Standard Chartered Bank v Neocorp International Ltd [2005] SGHC 43.(c) Conclusive evidence clauses are intended “to provide contractually agreed limits to the scope of disputes and to provide clarity as to the parties’ obligations once a project is complete”: see the recent judgment of Carr J in University of Brighton v Dovehouse Interiors [2014] BLR 432, which concerned the same clause of the JCT Contract as the present case. (iii) Final Certificates and

Adjudication

[10]There are four reported cases concerned with the interplay between conclusivity clauses and adjudication. Three are concerned (one way or another) with what might happen if a valid adjudication had not been commenced within 28 days of the Final Certificate, whilst the fourth dealt with the effect of not challenging an adjudicator’s decision on the Final Account, in circumstances where the contract provided that such a decision would be conclusive if not challenged within 28 days.[11]The first case in time was the decision of HHJ Havery QC in Bennett v FMK Construction Ltd [2005] ADJ. L.R. 06/30. This involved the effect of potential procedural difficulties on the validity of a notice of adjudication which challenged the Final Certificate. Judge Havery concluded that the first notice of adjudication in that case was sufficient to prevent the Final Certificate from becoming conclusive evidence, even though that first notice was later replaced by a second notice of adjudication that was served outside the period prescribed by the contract. At paragraph 15 of his judgment, the judge agreed that, if the referring party abandoned adjudication proceedings by failing to pursue them, then the saving provision (clause 1.9.3 in the present case) would no longer apply. But he said that that was not the position in the case before him.[12]In Cubitt Building and Interiors Ltd v Fleetglade [2006] EWHC 3413, there had been a notice of adjudication issued during the 28 day period. But there was a concern that if, through no fault of the claimant, the adjudicator’s decision was a nullity (because he took too long to arrive at his decision) there would then be no outstanding adjudication proceedings commenced within 28 days of the issue of the Final Certificate, and the claimant’s opportunity to challenge that Certificate would have been lost. I said:
“…the significance of the adjudicator’s default in such circumstances should not be underestimated. For example, as demonstrated by the terms of the contract in this case, an adjudicator’s failure to comply with the timetable might irredeemably deprive one party from its right to challenge a Final Certificate.”
[13]Given that the situation in both these cases was one over which the claiming party had little or no control, I suggested at paragraph 7.57 of the second edition of Coulson on Construction Adjudication that a contractor who wanted to challenge a Final Certificate by way of adjudication proceedings would be well advised to take a cautious approach, and issue arbitration or court proceedings at the same time as the notice of adjudication, just in case something went wrong with the adjudication during the reference. That suggestion was designed simply to reflect the reality that adjudication is a procedurally complex process, in large part outside the parties’ control, and which in any event leads to a decision which is, at best, only temporarily binding (see clause 1.9.4 in this contract).[14]Finally in this trio of cases dealing with potential technical difficulties with a notice of adjudication issued within the 28 days, there is University of Brighton, referred to above. The points in dispute were similar to those in Bennett. Carr J reached a similar decision, namely that, whatever the technical difficulties with the first notice of adjudication in that case, it had achieved its substantive purpose in commencing proceedings, and therefore the Final Certificate had been validly challenged. The judge concluded that this was so, even if (because the wrong nominating body had been referred to), a further notice of adjudication was required. At paragraph 86 she said this:
“I accept Dovehouse’s submission that the saving provision in clause 1.9.2 was triggered by the commencement of adjudication proceedings. Once triggered, on the facts of this case, the saving proviso remains in operation during the currency of any subsequent adjudication proceedings.”
[15]A different but related point arose in Jerram Falkus Construction Ltd v Fenice Investments Inc (No. 4) [2011] EWHC 1935 (TCC), the final authority for consideration. There the contract contained provisions similar to those which apply here, including clause 1.9.4. In that case, the adjudicator’s decision, which rejected JFC’s challenge to the Final Account, was not challenged within 28 days. Fenice said therefore that the decision could not subsequently be challenged. I agreed. At paragraphs 22-26 I explained why I had reached the view that JFC had lost the right to challenge the adjudicator’s decision:
“22. Superficially, JFC's best point arises out of the precise words of clause 1.9.4. Nowhere in that provision does it say in terms that the adjudicator's decision, if not challenged within 28 day, is conclusive on the matters with which it deals. In a form of contract which appears liberally to endorse the concept of conclusive decisions and statements, that might be thought to be something of an obstacle to the argument that, in this case, Dr Mastrandrea’s decision was indeed conclusive. Furthermore, I note that the requirement to challenge that decision within 28 days was not said to be mandatory but merely permissive: “that party may commence arbitration or legal proceedings within 28 days…” 23. However, on a proper analysis, it seems to me that these narrow points on the wording of the clause ignore two fundamental issues. The first is the purpose of clause 1.9 itself. The clause is designed to provide for various circumstances in which, following the provision of the Final Account, the position between the parties can become conclusive, thereby precluding any further dispute. Clause 1.9.4 must therefore be read in that context; it is providing a deadline beyond which something – in this case the decision in an adjudication started after the provision of the Final Account – becomes conclusive. Mr Sampson agreed that it was providing a “last chance”
. If it were not a provision relating to conclusivity, it would not be part of clause 1.9 at all. 24. Secondly, if clause 1.9.4 was not providing some form of deadline, beyond which the result in a post-Final Account adjudication could not be challenged, then the provision was entirely redundant. If the clause was simply recording that the losing party could challenge the adjudicator's decision within 28 days, but that there was no consequence if they did not do so, then the provision would be meaningless: it would simply be recording something which the losing party could do in a 28 day period, but which it could also do just as well after the 28 day period had expired. It is contrary to one of the canons of contractual interpretation to read a clause of this type as mere verbiage, without any consequence or effect. 25. I acknowledge that there is a gap between the language of clause 1.9.4 and its intended purpose. But, for the reasons I have given, I conclude that clause 1.9.4 was plainly intended to ensure that, if there was an adjudication after the Final Account had been provided, the losing party had 28 days in which to challenge the result, or the result became conclusive. JFC failed to do that in this case, and as a result they cannot now raise any argument to the effect that time is at large, that contention having been expressly considered and rejected by the adjudicator. 26. Standing back from the clause for a moment, it seems to me that this result makes commercial common sense. It would be absurd for the parties to enter into a detailed adjudication on the issues between them, after the Final Account has been provided and thus a long time after the works were completed; for the losing party to allow the decision to rest unchallenged for months or even years; and for that losing party to endeavour, months or years later, to go over exactly the same course all over again. That would provide for neither finality nor certainty, both of which clause 1.9 was designed to provide.”[16]It will be apparent that all four of the decisions concerned with the interplay between Final Certificate/Account provisions and adjudication were concerned, in one way or another, with a situation in which the contractor sought originally to challenge the Final Certificate by way of adjudication. There are no reported cases in which a party (like the defendant here) was dissatisfied with the Final Certificate and originally issued court proceedings and then, much later, wanted to commence adjudication proceedings.[17]In addition, although both Bennett and University of Brighton are saying the same thing (that the particular notice of adjudication under review was sufficient to stop the clock running under clause 1.9, and to allow the saving provision to bite, despite the procedural or formal difficulties which arose), the possibility of protecting oneself against the risk that the right to challenge the Final Certificate in adjudication proceedings may be lost (as noted in paragraph 13 above, a possibility arising from these two cases and Cubitt) is predicated on the basis that both the adjudication and any protective arbitration or court proceedings would be issued within the 28 day period. None of the cases, or the passage in my textbook, are concerned with the proposition that arises in the present case: that a second set of proceedings – here a proposed adjudication – could be commenced a year or more after the expiry of the 28 days.[4]The Parties’ Submissions[18]On behalf of the claimant, Ms Day submits that Clause 1.9 is straightforward in its operation. It means that the Final Certificate is not conclusive evidence in any proceedings issued within 28 days of the Certificate (such as the Part 7 proceedings started in this case) but will take effect as conclusive evidence in any proceedings not issued within that 28 day period, including any future adjudication which may now be commenced. She submits that this is the right construction of the provision, but that if there were any doubt about it, it is the construction which is in accordance with business common sense and the adjudication authorities to which I have previously referred.[19]On behalf of the defendant, in a letter dated 9 July 2014, their solicitors suggested that, because the Final Certificate had been challenged in time in the Part 7 proceedings, it was “inconclusive and has been challenged for the purposes of all dispute resolution proceedings, which [the defendant] is entitled to commence at any time. As the Final Certificate has been challenged and is inconclusive, no payment is due to [the claimant] pursuant to it.” This was tantamount to saying that, because the Part 7 proceedings constituted an effective ‘foot in the door’, the effect of the Final Certificate has been entirely negated for all time.[20]At the hearing before me, Ms Slow did not appear to put her submissions quite that high. Instead, she argued that, by reference to clause 1.9.3, the saving provision (that is to say, those disputes in respect of which the Final Certificate was not conclusive), related expressly to “the matters to which those proceedings relate”. Accordingly, she argued that, because the saving was in respect of those matters to which the proceedings (started within 28 days) related, that meant that, provided that the subsequent adjudication related only to those same matters, there was nothing to stop the defendant from issuing subsequent adjudication proceedings in respect of such matters. Indeed, she suggested that, if the defendant could not do that, then that would be an unwarranted prohibition or fetter on their right to adjudicate ‘at any time’.[21]Although my initial instinct was that the defendant’s stance was obviously wrong, Ms Slow’s thoughtful oral submissions have given me pause for thought. In deference to her arguments, I therefore analyse the dispute between the parties under three heads:(i) the literal meaning of the words;(ii) business common sense; and(iii) the defendant’s alleged right to adjudicate ‘at any time’.[5]The Literal Meaning of Clause 1.9.3[22]I am in no doubt that the analysis set out in the defendant’s solicitor’s letter of 9 July 2014 (what I have called the ‘foot in the door’ approach in paragraph 19 above) is wrong. It is wholly contrary to the conclusivity provisions in the contract to interpret them as meaning that, provided there was any sort of challenge within the 28 days, the Final Certificate was no longer conclusive and would have no effect in any proceedings issued months or years down the line. There is nothing in clause 1.9.3 to support such an open-ended approach.[23]The real point on the interpretation issue is whether clause 1.9.3 envisages one set of proceedings (whether adjudication, arbitration or court proceedings) issued within the 28 days to challenge the Final Certificate, or whether it envisages an initial set of proceedings in which the relevant “matters” can be raised, but then permits the challenger to commence other proceedings, outside the 28 days, which (provided only that those same matters were raised in the subsequent proceedings) would be equally legitimate. In my view, on a proper interpretation of the words used, and with one qualification, the former is the correct construction.[24]As a starting point, I consider that the purpose of clause 1.9.3 is to limit those matters in respect of which the Final Certificate is not conclusive to those matters raised in any proceedings issued within 28 days. Thus, if the contractor wishes to challenge, say, the valuation of the works in respect of the roof in the Final Certificate, he can raise that matter in such proceedings, but the employer will at least know that the valuation of, say, the foundations (which may previously have been in issue), is now accepted. On that example, the valuation in respect of the roof would then be the subject the subsequent proceedings started within 28 days. Proper certainty and clarity (the aim of provisions like this) is therefore achieved, even in the circumstances of a challenge to one or more elements of the Final Certificate.[25]Secondly, the use of the word “matters” in clause 1.9.3 is not inconsistent with that approach, because the contract needs to provide for a mechanism that identifies clearly those individual elements (“matters”) which are the subject of the saving provision. A general reference to “the proceedings” would not achieve that. It is “the matters” raised in those proceedings which are caught by the saving provision, but nothing else. In other words, although Ms Slow relies on the word “matters” in support of her interpretation, it is in truth difficult to see what other word could have been used to identify those challenges to the Final Certificate which are caught by the saving provision.[26]Thirdly, the Clause is predicated on the assumption that the party who wishes to challenge the Final Certificate can choose the forum in which that is done. The challenger can choose one of adjudication, arbitration or other proceedings (i.e. in court). On its face, the clause does not envisage more than one set of proceedings. There are certainly no words in clause 1.9.3 which permit a series of subsequent proceedings, with the first being commenced within 28 days, and the others starting months or years later.[27]It may be argued that such a conclusion is contrary to the suggestion, noted above, that if the original proceedings challenging the Final Certificate are started by way of adjudication, then it may be possible to safeguard the challenger’s position by simultaneously issuing an arbitration notice or claim form. But that would ignore the different imperatives and consequences of adjudication, noted at paragraph 13 above, and the express provision in clause 1.9.4, explained in Jerram Falkus, which expressly allows a further 28 days after an adjudicator has decided a Final Certificate challenge, in which the challenger can issue arbitration or court proceedings. That is the qualification to which I refer in paragraph 23 above: if adjudication is the first option of the would-be challenger under clause 1.9.3, simultaneous protective court or arbitration proceedings (issued within the 28 days) are permissible, and/or court or arbitration proceedings in accordance with clause 1.9.4, but not otherwise.[28]Moreover, the important point about clause 1.9.3 for present purposes is not whether one or more sets of proceedings are permitted after the Final Certificate has been issued, but whether any proceedings are permitted after the expiry of the 28 days following the issue of the Certificate. As a matter of construction of clause 1.9.3, I conclude that they are not.[29]Fourthly, clause 1.9.3 refers to the possibility that proceedings will be commenced within 28 days. If that happens, it goes on to provide that the Final Certificate “shall have effect as conclusive evidence as provided in clause 1.9.1, save only in respect of the matters to which those proceedings relate”. If Ms Slow’s interpretation is right, then clause 1.9.3 would have to refer to “those or any other proceedings”. Of course it does not say that because what is envisaged, subject to the point made above, is one set of proceedings in which the Final Certificate is challenged.[30]Accordingly, for those reasons, I consider that the proper construction of clause 1.9.3 is that (subject only to the qualification noted in paragraph 27 above), the challenger has to challenge the Final Certificate in one set of proceedings, and that it is those proceedings which constitute the only vehicle by which the Final Certificate is capable of being challenged. However, to the extent that I am wrong, and that Ms Slow’s alternative construction is at least arguable, the issue becomes: which interpretation is in accordance with business common sense?[6]The Common Sense Interpretation of Clause 1.9.3[31]As I have already noted, the underlying purpose of clause 1.9.3 is to provide clarity and certainty, even if there is a challenge to some or all aspects of the Final Certificate. Plainly, such clarity and certainty is best delivered by the provision which allows for just one set of proceedings started within the 28 day period.[32]Save again for the qualification which I have noted above, the possibility of more than one set of proceedings, whether simultaneous or sequential, following the original legitimate challenge to the Final Certificate, would be the complete opposite of the clarity and certainty which clauses such as these are intended to give. Business common sense dictates that, if the Final Certificate is to be challenged, it is challenged in one place, in one set of proceedings, promptly commenced. Further complexities and proceedings are not envisaged.[33]There is also the question of costs. When a Final Certificate is issued, the project is complete and neither the employer nor contractor will ordinarily want to become involved in claims and cross-claims which require the incurring of extensive additional costs. Therefore, in the same way as it is contrary to business common sense to conclude that the parties envisaged further proceedings, commenced outside the 28 days, in which a challenge to the Final Certificate could be made, I conclude that it is contrary to common sense to conclude that the parties envisaged incurring the costs of subsequent proceedings, issued months or years after the initial proceedings, to argue about the same matters. A commercial construction of clause 1.9.3 leads to the inevitable conclusion that the parties envisaged incurring only the costs of one final set of proceedings started in time, not a multiplicity of subsequent proceedings, started months or years later.[34]Accordingly, if (which I do not accept) the words of clause 1.9.3 could have more than one interpretation, then I am in no doubt that business common sense dictates that the right interpretation is that, following the issue of the Final Certificate, the contract provided for just one set of proceedings, started within 28 days, in which that Final Certificate could be challenged. That is consistent with the principles noted in paragraph 9 above. The only exception to that is if the original proceedings were commenced by way of adjudication: then, as I have explained, the position is governed by clause 1.9.4, although a protective arbitration notice or claim form (for example, to guard against the decision being a nullity) would also be permissible, provided that too was issued within the 28 days.[7]Fettering the Right to Adjudicate ‘At Any Time’[35]Ms Slow raised a further point which ought to be addressed separately. She said that if I concluded, for whatever reason, that the defendant could not issue subsequent adjudication proceedings, then I was fettering their right to adjudicate “at any time”.[36]It is certainly correct that, in general terms, a party to a construction contract has a right to adjudicate at any time: see Herschel Engineering Ltd v Breen Property Ltd (No. 1) [2000] BLR 272 and Connex South Eastern Ltd v MJ Building Services Group PLC [2004] BLR 333. Those cases also say that this general right co-exists with the right to arbitrate or go to court, so that at least the possibility of concurrent proceedings is not prohibited.[37]However, on analysis, there is no fetter or prohibition here. There are a number of reasons for that. First, there is nothing to prevent either party from commencing adjudication proceedings tomorrow. The defendant is not fettered or prohibited from commencing adjudication proceedings. Of course, because such proceedings were not commenced within 28 days of the Final Certificate, the Final Certificate would be conclusive evidence on the subjects identified under clause 1.9. But nothing is preventing the defendant from issuing adjudication proceedings, so there is no fetter.[38]To the extent that the defendant now complains that it is prohibited from challenging theFinal Certificate in any adjudication proceedings, then that is solely as a result of the defendant’s own choice. The defendant could have issued adjudication proceedings within 28 days of the Final Certificate and then arbitrated or litigated if it did not like the result in accordance with Clause 1.9.4. It chose, doubtless for good reasons, to issue Part 7 proceedings instead. Thus the defendant had a right to adjudicate that challenge, but chose instead to litigate. There has therefore been no fettering of the defendant’s right to adjudicate; instead the defendant has chosen deliberately not to avail itself of that right in connection with one particular dispute (namely the challenge to the Final Certificate). So, although Ms Slow maintains that, by reference to Herschel and Connex, the defendant had a right to adjudicate as well as to litigate, that was on the clear proviso that, if it wanted to challenge the Final Certificate, such adjudication proceedings had to be commenced within the time limit prescribed by clause 1.9.3. They were not.[39]The general right to adjudicate ‘at any time’ has been circumscribed by the contractual provision which limited the right to adjudicate a particular issue (a challenge to the Final Certificate) to proceedings commenced within 28 days of that Final Certificate. I understood Ms Slow to accept that during argument. It seems to me to be self-evident. It is what distinguishes this case from Herschel and Connex. In the absence of adjudication proceedings issued within 28 days, there was no additional or further right to adjudicate, if the purpose of the adjudication was to challenge the Final Certificate. In my view, that conclusion is consistent with the cases at paragraphs 10-17 above. I do not read paragraph 86 of the judgment of Carr J in University of Brighton (paragraph 14 above) as providing any support for the contrary view.[40]Finally, at one point Ms Slow suggested that, if clause 1.9.3 had the effect that I have described, it was contrary to the Housing Grants (Construction and Regeneration) Act 1996, because it prevented the claimant from adjudicating at any time; from, in this case, issuing adjudication proceedings more than 28 days after the issue of the Final Certificate. I have already explained why the position is rather more nuanced than that. But even if it was right to say that there was such a prohibition, it was because of the contractual agreement as to conclusivity. It has never before been suggested that clause 1.9, or any similar provisions in other standard forms, is contrary to the 1996 Act. In my view it is not. The Act does not provide an unfettered right to adjudicate regardless of other contractual terms. Indeed I consider that conclusivity provisions, such as these, provide a useful limit on (but not a bar to) post-completion disputes, and are therefore in accordance with the spirit and purpose of the 1996 Act.[8]The Effect of My Decision[41]At the very end of the hearing, there was some argument as to the effect of any decision which prohibited the defendant from issuing subsequent adjudication proceedings. Obviously one effect would be that the existing challenges to the Final Certificate could not be dealt with in adjudication and that the slower Part 7 claim was the only way in which those matters can be resolved (save of course for mediation or any other type of ADR). But lest it be thought that this was in some way a disadvantage to the defendant (the claimant in the Part 7 proceedings) I should note the following.[42]First, these Part 7 proceedings have been extant for over a year. The defendant has not progressed them with any proper speed. In the TCC, if the matter had proceeded promptly, I would have envisaged a trial on the substance of these issues in May or June of this year. Because of the defendant’s delays, that will not happen. That is therefore a matter for the defendant, rather than anyone else.[43]Secondly, I have helpfully been shown the pleadings in the Part 7 claim. They are the sort of pleadings which are typical in a ‘kitchen sink’ building dispute. There are reams of detailed items in dispute. It is broadly a Scott Schedule case. Inevitably, given the volume of items in dispute, any adjudicator’s decision would be very rough and ready, thus increasing the chances that, even if there were an adjudication, Part 7 proceedings would then be necessary to deal with any subsequent challenge to that decision. In other words, I am far from persuaded that the defendant is, in reality, at all disadvantaged by my conclusion that the challenge to the Final Certificate can only be addressed in the existing Part 7 proceedings.[44]As previously noted, the Final Certificate was in the sum of £232,153.54 plus VAT, a sum due to the claimant from the defendant. Because that Final Certificate was only challenged in the Part 7 proceedings, Ms Day maintained that the consequence of any decision in her favour as to the proper interpretation of clause 1.9.3 is that the claimant would be entitled to issue adjudication proceedings to recover the £232,153.54, and that an adjudicator would be obliged to find in the claimant’s favour. She argued that, pursuant to the general principles of adjudication, the claimant is therefore entitled to hold the money (namely the £232,153.54) until the conclusion of the Part 7 proceedings. Declarations are sought to this effect.[45]Without finally deciding the point, I am not sure that Ms Day is right. An adjudicator may conclude that the certified sum was due to the claimant. But even if that was the effect of the decision, on enforcement, it does not follow that a judge would be obliged to give summary judgment in the claimant’s favour. A judge may conclude that, even if the adjudicator was bound to find in favour of the claimant, there was a triable issue as to whether or not the sum was due, raised in detail by the defendant in the Part 7 proceedings. And even if that were wrong and the court was persuaded to give summary judgement, there may well be a legitimate ground for a stay of execution. It would be unusual for a claimant to recover summary judgment in respect of a claim when the defence to it (namely the challenge to the Final Certificate) has been outlined in detail in pre-existing court proceedings.[46]For those reasons, therefore, whilst I do not finally decide that issue (because it is largely peripheral to the principal matter raised by the claimant in these Part 8 proceedings), I decline to grant any declaration in respect of the sums allegedly due under the Final Certificate.[9]Declaration[47]There was some argument between counsel as to the wording of the declaration on clause 1.9.3. I would invite them to agree the wording of the declaration based on this Judgment. For the avoidance of doubt, it is my conclusion 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 which might subsequently be commenced, because those proceedings would not have been commenced within 28 days of the Final Certificate.

Cited in 3 later judgments