Does The Conclusivity Of A JCT Final Certificate Unlawfully Fetter A Party’s Right To Adjudicate?

Where a project is governed by a JCT form of contract, the Final Certificate is intended to ensure that disputes arising after practical completion are resolved with a degree of finality and speed. The usual provision is that a party has 28 days in which to challenge the Final Certificate, once it has been issued. In the absence of a challenge, the Certificate will become conclusive evidence of many aspects that might be the subject of a later dispute. The recent TCC case of The Trustees of the Marc Gilbard 2009 Settlement Trust v OD Developments and Projects Limited [2015] EWHC 70 (TCC) dealt with the question of whether a party could, having commenced litigation within the 28 day period, proceed to commence adjudication in respect of the same issues after the expiry of the same period.

Facts

The Claimant employed the Defendant to carry out works under the JCT Standard Building Contract (Without Quantities) Revision 2 (2009) ("the Contract"). The Contract contained some typical provisions in relation to the Final Certificate, including that the Final Certificate would be "conclusive evidence" in any proceedings as to a host of matters (defects, extensions of time, loss and expense etc.). This was subject to the usual saving provision as follows:

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.

The contract administrator issued the Final Certificate showing that the Defendant owed the Claimant £232,153.54 plus VAT. Within the 28 day contractual period, the Defendant commenced litigation in the TCC disputing the Final Certificate. However, over a year later, the Defendant also wished to commence adjudication in respect of the same matters contested in the existing litigation (presumably so that the ongoing court proceedings could act as a fall-back option in the event that the adjudication failed to resolve the mater to its satisfaction).

The Claimant sought a declaration as to the proper interpretation of the above contractual provision. It was their case that commencing adjudication was not an option available to the Defendant because they would be commencing following the expiry of the 28 day period, notwithstanding the fact that the same matters were being legitimately dealt with in...