Civil Engineering Reference
In-Depth Information
menced proceedings. The employer did not seek to refer the dispute to arbitration, but
sought leave to defend the proceedings by alleging that the flooring was still faulty and
counterclaimed some £13,500. The action was referred to the Official Referee but then
postponed. The contractor alleged that he tried to repair any further defects, but about
12 months later wrote to the architect requesting the final certficate, claiming that it
was due since the works could not now be other than properly carried out.
The architect issued the final certificate showing a balance due to the contractor of
£2,360. Three days after its issue the employer asked the contractor to concur in the
appointment of an arbitrator. The contractor refused, alleging that it was now too late,
and relying on clause 30(7) which then provided as follows:
Unless a written request to concur in the appointment of an arbitrator shall have
been given . . . by either party before the final certificate has been issued . . . the said
Certificate shall be conclusive evidence in any proceedings arising out of this con-
tract . . . that the works have been properly carried out and completed in accordance
with the terms of this contract . . .
The contractors issued a second writ claiming the amount of the final certificate.
Held:
The words in clause 30(7) that the final certificate shall be 'conclusive evidence in any
proceedings arising out of this contract' prevented any further legal action, including
the legal proceedings started long before the certificate was issued.
Note: Lord Diplock gave a strong dissenting judgment, which is quoted below. Clause
30(7) was revised by the JCT as a result of this case.
LORD MORRIS OF BORTH-Y-GEST: Of the issues which are open for decision, the most dificult,
in my opinion, is whether the words 'conclusive evidence in any proceedings arising out of
this Contract' should be limited to proceedings commenced after the date of the final certifi-
cate or whether they also cover proceedings previously begun. As a matter of language it can
hardly be doubted which alternative is to be preferred: to accept the former involves writing
in a limitation which is not there. But there are more substantial issues involved, which relate,
broadly, to the interaction between an architect's certificate and the power and duty of the
courts to decide disputes. Can the parties, it may be asked, by a contractual stipulation, exclude
the courts from their constitutional responsibility? If one considers the closely analogous field
of arbitration, one may contrast the willingness of the courts to stay court proceedings when
there has been a submission to arbitration, while still retaining ultimate control, with their
unwillingness, once court proceedings have started, to allow the question before the court to
be decided by subsequent arbitration - see
Doleman & Sons
v.
Ossett Corporation
(1912), not
cited before the Court of Appeal but referred to by Cairns LJ in his judgment. The present
case resembles, it is said, the situation in that case.
My Lords, I am impressed, as was Lord Denning MR, with this argument, but on the whole
I have come to a conclusion against it. To describe clause 30(7), as sought to be invoked here,
as an ouster of the court's jurisdiction, seems to me to beg the question and in fact to misde-
scribe the effect attributed to it. The court proceedings, as can be seen from the pleadings,
raise the question whether the work done and the materials used were such as should have
