Buxton Building Contractors Limited v The Governors of Durand Primary School
Case reference:
[2004] EWHC 733 (TCC)
Friday, 12 March 2004
Key terms: Enforcement of Adjudicator’s Decision - JCT IFC 1998 Edition - Interim Certificate - Practical Completion - Certificate of Making Good Defects - Final Certificate - Withholding Notice - cross claim - Adjudicator’s failure to consider submissions and docum
The Claimant was Buxton Building Contractors Limited, and the Defendant The Governors of Durand Primary School. Buxton had carried out building work to the school in 2001 under a JCT IFC 1998 Edition form of contract. The work comprised a new residential block for use by visiting students and others.
Interim Certificates were issued, a Practical Completion Certificate and a Certificate of Making Good Defects. Further, a document was issued by the Contract Administrator described as an Interim Certificate. A dispute had been ongoing between the school and Buxton in respect of a variety of matters. These matters had not been resolved after the Certificate of Making Good Defects, and as a result the Contract Administrator was unwilling to issue a Final Certificate. He therefore purported to issue a further Interim Certificate, and the school then served a withholding notice in respect of that certificate in relation to its ongoing cross claim for defects and outstanding works.
The adjudicator decided that the sum certified in the Interim Certificate was due and payable in the absence of a withholding notice.
HHJ Thornton QC held that there was a fatal flaw in the decision because the adjudicator did not then go on to consider the contents of the submissions and documents and other issues referred to him by the school. The consequences were that, first, the Adjudicator had not fulfilled his statutory duty in deciding on this dispute referred to him and second, the Adjudicator failed to consider all of the matters in his dispute or the representation made to him by the school in respect of the dispute. This was a serious irregularity and the decision unenforceable.
Interim Certificates were issued, a Practical Completion Certificate and a Certificate of Making Good Defects. Further, a document was issued by the Contract Administrator described as an Interim Certificate. A dispute had been ongoing between the school and Buxton in respect of a variety of matters. These matters had not been resolved after the Certificate of Making Good Defects, and as a result the Contract Administrator was unwilling to issue a Final Certificate. He therefore purported to issue a further Interim Certificate, and the school then served a withholding notice in respect of that certificate in relation to its ongoing cross claim for defects and outstanding works.
The adjudicator decided that the sum certified in the Interim Certificate was due and payable in the absence of a withholding notice.
HHJ Thornton QC held that there was a fatal flaw in the decision because the adjudicator did not then go on to consider the contents of the submissions and documents and other issues referred to him by the school. The consequences were that, first, the Adjudicator had not fulfilled his statutory duty in deciding on this dispute referred to him and second, the Adjudicator failed to consider all of the matters in his dispute or the representation made to him by the school in respect of the dispute. This was a serious irregularity and the decision unenforceable.