JCT 2011 unamended contracts contain a provision that the Final Certificate is conclusive on a number of issues.
There is one proviso to this and the matters in any adjudication, arbitration or other (which would include court) proceedings commenced within 28 days after the Final Certificate has been issued.
What happens though if say court proceedings are issued within 28 days and later on one of the parties wants to issue arbitration proceedings in relation to matters not addressed in the court proceedings? After all, the Construction Act says that adjudication proceedings can be commenced at any time.
In the recent case of the Trustees of the Marc Gilbard 2009 Settlement Trust, the court made it clear it would not allow this to happen. It said:
- A party who commences adjudication proceedings within 28 days of the issue of the Final Certificate will be able to, either at the same time (by way of protective proceedings) or subsequently, issue court or arbitration proceedings, but only on the matters addressed in the adjudication and only within 28 days of the adjudicator’s decision.
- Otherwise only one set of court or arbitration proceedings can be commenced within the 28 days of the Final Certificate. No further proceedings (be they adjudication or otherwise) can be commenced after the 28 days has passed.