Civil Engineering Reference
In-Depth Information
any computation or any arithmetical error in any computation. In such circumstances,
the Final Certificate is conclusive evidence as to all other computations.
It is conclusive evidence that all and only such extensions of time, if any, as are due
under clause 2.28 have been given.
Finally, it is conclusive evidence that the reimbursement of direct loss and/or
expense, if any, to the Contractor pursuant to clause 4.23 is in final settlement of all
and any claims which the Contractor has or may have arising out of the occurrence
of any of the relevant matters referred to in clause 4.24 whether such claims are for
breach of contract, duty of care, statutory duty or otherwise.
The issue of a final certificate is unlikely to cover claims in respect of damages for
breach of contract, as it is unusual to find such matters within the certifier's remit.
The issue of the final certificate can preclude the employer's ability to deduct liqui-
dated damages. Clause 2.32 of the SBC provides that the Employer may require the
Contractor to pay liquidated damages provided they give notice in writing prior to
theissueoftheFinalCertiicate.Seealso
Robert Paterson & Sons Ltd
v.
Household
Supplies Co. Ltd
(1974).
A final certificate will not have conclusive effect if the certifier has exceeded his
jurisdiction or the issue of the certificate is challengeable on other grounds, for
example, where the certifier has not acted independently, has acted in bad faith or
has acted fraudulently. These issues are more fully considered in Section 7.6. Clause
1.9 of the SBC specifically provides that the Final Certificate will not be conclusive in
the event of fraud. he Final Certificate is conclusive unless and until it is successfully
challenged.
7.4.3 The final certificate as conclusive evidence
Itwillbenotedthatclause1.9oftheSBCstatesonanumberofoccasionsthattheFinal
Certificate has the effect of being 'conclusive evidence' on a matter. In many standard
formsofbuildingcontract,itiscommontoindprovisionsthattheinalcertiicateisto
some extent conclusive and binding upon the parties. Where a final certificate is stated
to be conclusive and binding and has been properly issued, then its effect is final in
respect of the matters covered by the certificate. Accordingly, the parties to a contract
cannot challenge the certificate by adjudication, arbitration or in the courts, or ask the
adjudicator, arbiter or courts to review the certificate, simply on the grounds that they
are aggrieved by it or disagree with its terms. The Statutory Scheme for Construction
ContractsinScotlandstipulatesthatanadjudicatorcanopenup,reviewandrevise
any certificate unless the contract states the certificate is final and conclusive, see Part
I of the Schedule to the Scheme for Construction Contracts (Scotland) Regulations
1998, paragraph 20(2)(a).
The certificate is the final expression of the certifier's decision and cannot be inter-
fered with simply on the basis that the certificate is wrong or negligently issued, see,
for example,
Rush & Tompkins Ltd
v.
Deaner
(1989) where, due to an error on the part
of the certifier, the balance due to the contractor in terms of the final certificate was
mistakenly based on sums certified rather than sums certified and paid. It is submit-
tedthatthereasonforthisisthatthecertiierhasbeenselectedfromaprofessional
