The contractor carried out work in respect of the claimant’s property. The works were completed and a final certificate was issued on 11 March 2005. The contract was based on the JCT standard form 1998 edition private without quantity. On 6 April the defendant served a notice of adjudication. On 13 April they applied to the RIBA for the nomination of an adjudicator. The adjudicator was nominated on 14 April.
The claimant argued that the matters under contract had been finally resolved because the final certificate provided was “conclusive evidence”. All matters under the contract had been resolved. The exception at clause 30.9.3 was that it was not conclusive evidence in respect of matters that were the subject of proceedings pursuant to the dispute resolution clauses.
The claimant’s main point was that the first notice of adjudication had been served within the time period, but was ineffective and so the defendant was relying upon a second notice of adjudication that had been served after the 28-day period.
HHJ Havery QC did not accept this argument. He held (at paragraph 17): “I conclude that the word ‘those proceedings’ in relation to adjudication in the salvo to clause 30.9.3 is wide enough to include, and does include, new adjudication proceedings brought by a referring party in relation to the same dispute or difference as was the subject of earlier adjudication proceedings brought by the same party which have been rendered abortive through no action or omission of the referring party.”
The adjudicator was unavailable and had to resign, thus leading to a re-nomination. The matter had been referred before the deadline and was thus still a live issue and the second notice served after the deadline was effective. The declaration ordered was that the final certificate issued on 11 March 2005 was conclusive evidence in respect of clause 30.9.2, that all matters were concluded, save for those matters to which the first adjudication proceedings related.
*Full case details
5 July 2005, TCC, HHJ Richard Havery QC
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An adjudication commenced just before the deadline rendering all matters between the parties final and conclusive under the contract. The adjudicator could not act, and by the time another one had been appointed, all matters under the contract had become final and conclusive because of the passing of the deadline. The second notice should have been ineffective because it was given outside of the deadline. However, as the delay had not been caused by the referring party, the judge held that the service of the second notice was effective and the matter could be referred to adjudication.