Bennett v FMK Construction Ltd

The final certificate issued under JCT 98 was conclusive evidence of the matters set out in it notwithstanding that the contractor's notice of intention to refer in the (second) set of proceedings was not served within 28 days of the date of issue of the certificate
 
BENNETT v FMK CONSTRUCTION LTD

Technology and Construction Court
His Honour Judge Richard Havery QC
30 June 2005
 
 
The contractor served a notice of intention to refer a dispute to adjudication as to the correctness of the contents of the final certificate issued under JCT 98. An adjudicator was appointed. The homeowner contended that the contractor had failed to comply with clause 41A.2.2 of JCT 98 by only applying to appoint an adjudicator on the seventh day after service of its notice. The adjudicator took the view that he would be acting improperly were he to continue with an adjudication that was probably fatally flawed and promptly resigned. The homeowner sought to commence a second set of adjudication proceedings in respect of the same dispute by re-serving its notice of intention to refer. The same adjudicator was re-appointed and the homeowner contended before him that the final certificate was conclusive evidence of the matters set out in it by reason of the second set of proceedings not having been commenced within 28 days of the date of issue of the certificate (as required by clause 30.9.3).
 
Judge Havery concluded that the final certificate was conclusive evidence on the basis of two findings. The first was that that the contractor had not failed to comply with clause 41A.2.2 of JCT 98 by (only) applying for the appointment of an adjudicator on the seventh day after its service of its notice of intention to refer. This was because clause 41A.2.2 could not be read as imposing a particular time limit of less than seven days for making the application and was in any event a directory (rather than mandatory) provision. The second was that that the service by the contractor of its notice of intention to refer the dispute in the first set of proceedings was sufficient compliance with clause 30.9.3 so as to prevent the final certificate from being conclusive evidence. In particular the judge held that it was the service of the referral notice (and not simply the service of the notice of intention to refer) that completed the commencement of adjudication proceedings (with the result that there could have been no operation of clause 30.9.3 preventing the final certificate from constituting conclusive evidence in either of the two sets of proceedings brought by the contractor).
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