Gear engaged McGee as a ground works contractor under a contract incorporating the JCT Trade Contract terms (TC/C) 2002 edition with Amendment No. 1:2003, with further bespoke amendments.

Gear referred to adjudication certain issues, including the proper interpretation and application of the extension of time and delay-related loss and expense clauses in the contract. Not being satisfied with the Adjudicator’s decision but not challenging its enforceability, Gear commenced Part 8 proceedings to obtain final declarations. The parties agreed that their disputes or differences between them were still being determined by TCC proceedings. In particular, Gear sought determination as to the true meaning and effect of clause 4.21 of the contract which was argued to be a condition precedent.

The judge granted the declarations sought by Gear after applying the principles in Chartbrook v Persimmon Homes. He stated that the whilst the Court does not readily accept parties make mistakes in the drafting of their contracts, when it is clear that something has gone wrong in the drafting, the Court will seek to determine what the parties actually meant.

Therefore the parties were bound by the Court’s decision in relation to the meaning of the contract. This decision would also bind future Adjudicators.