Cantrell & Anor v Wright & Fuller Ltd, Court of Appeal - Technology and Construction Court, July 30, 2003, [2003] BLR 412,91 Con LR 97,[2003] EWHC 1545 (TCC)

Extract

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Cantrell & Anor v Wright & Fuller Ltd, Court of Appeal - Technology and Construction Court, July 30, 2003, [2003] BLR 412,91 Con LR 97,[2003] EWHC 1545 (TCC)

Case Number: HT 03/121

Neutral Citation No [2003] EWHC 1545 (TCC)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

TECHNOLOGY AND CONSTRUCTION COURT

Date of Handing Down of Judgment: 30 July 2003

Before:

HIS HONOUR JUDGE THORNTON Q.C

In The Matter Of The Arbitration Act 1996

And In The Matter of An Arbitration

Between:

(1) B.R. Cantrell

(2) E.P. Cantrell

Claimants

- and -

Wright & Fuller Limited

Respondent

Mr Cantrell of Sunflower Farm Barn, Laxfield, Woodbridge, Suffolk, 1P13 8HP appeared on his own behalf and on behalf of Mrs Cantrell with the assistance of McKenzie Friend, Mr B G French, Solicitor, Blocks, Arcade Chambers, 2-6 Arcade Street, Ipswich, Suffolk, IP1 1EL, DX: 3207 Ipswich, Ref: BGF/vkl/Can019-l.

Mr Darryl Royce appeared for the respondent instructed by Jackaman Smith & Mulley, Oak House, Northgate Street, Ipswich, Suffolk, IP1 3BX, DX: 3229 Ipswich, Suffolk, IP1 3BX (Ref: PBS/CJC/1W669-1) appeared for the respondent.

Date of Hearing: 6 June and 4 July 2003

SUBJECT MATTER

Validity of Final Certificate issued outside time limits provided for by contract, clauses 30.8 and 30.9 of the JCT Standard Form of Contract, 1980 edition, construction of conclusive evidence clauses and the Final Certificate, application of Penwith District Council v VP Developments Ltd.

DECISION

The appeal is allowed, the certificate was not the Final Certificate in form, substance or intent.

This judgment was made in writing and was handed down by the court. For the purposes of paragraph 5.12 of 52PD-19 (Practice Direction - Appeals), this written judgment is to be taken as replacing an official recording and approved transcript of the judgment.

INDEX

JUDGMENT

1. INTRODUCTION

1. This is an appeal brought under section 69(1) of the Arbitration Act 1996 from the award of an Arbitrator, Professor Mark Cato. The appeal on the questions of law arising out of the award on certain preliminary issues answered by the arbitrator is brought without leave since the contract, in the JCT standard form, 1980 edition, contains a provision, in clause 41.6.1, which satisfies the statutory requirement that leave to appeal is not required. This consequence of the combined effect of section 69(1) of the Arbitration Act 1996 and clause 41.6.1 of the JCT Conditions accords with a long line of authorities including How Engineering & Services Ltd v Lindner Ceiling and Floors Plc, unreported, 17 May 1995, Judge Thornton QC; Panatown Ltd v Alfred McAlpine Ltd 58 Con LR 46, Judge Thornton QC; Vatcroft (Contractors) Ltd v Seeboard Plc, 78 BLR 138, Judge Lloyd QC, Taylor Woodrow Civil Engineering Ltd v Hutchinson Development Ltd (1999) ADRLJ 83, Clarke J, Fence Gate Limited v NEL Construction Limited, 82 Con LR 41, Judge Thornton QC and Robin Ellis Ltd v Vinexsa International Ltd [2003] EWHC 1352 TCC, unreported, 13 June 2003, Judge Thornton QC.

2. The appeal arises out of a contract between the claimants, as employers, and the respondent, as contractors, that incorporated the JCT Standard Conditions of Contract, 1980 edition. This contract, entered into on 1 April 1997, provided for the construction of phase one of a new extension, being an Elderly Mental Institution unit, for the claimants who own and operate a nursing home at Saxted, near Woodbridge, in Suffolk. The contract Works achieved Practical Completion on 23 February 1998, the Defects Liability Period expired on 23 August 1998, a document relied on by the respondent as being the Final Certificate was issued on 29 March 1999 and a notice of arbitration was served by the respondent on 1 May 2002. Professor Cato was then appointed as arbitrator by the RIBA, the nominating body named in the contract.

3. The disputes referred to arbitration involve claims by the respondent for the unpaid balance of the sum certified as due and claims by the claimants that the Adjusted Contract Sum certified by the architect was erroneous, that alleged over payments to the respondent should be repaid, for both direct and consequential damages arising out of defects in the works and for liquidated damages for delayed completion.

4. Underlying these disputes is a major dispute between the parties as to whether the Final Certificate had validly been issued under clause 30.8 in a manner and form which brought clause 30.9 into effect so as to provide that certain matters are to be regarded in any subsequent proceedings as having been conclusively proved. The respondent contends that a valid and effective Final Certificate was issued with the result that the claimants' claims can no longer be pursued and that the effective defences to its own claims have been eliminated or significantly diminished. In consequence, without any pleadings having been served and with no precise definition of issues having being agreed, the arbitrator, with the consent of the parties, directed that he would determine as preliminary issues five items: ``as broadly set out in the [respondent's] sk...

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