Conclusive Evidence Clauses
JCT contracts include a ‘conclusive evidence’ clause which in summary states that the ‘Final Certificate’ is conclusive evidence that all monies due to the contractor have been accounted for unless proceedings challenging the Final Certificate are commenced within 28 days from it being issued. Clause 1.9.3 of the JCT standard form of contract provides:
‘If any adjudication, arbitration or other proceedings are commenced by either party within 28 days after the Final Certificate has been issued, the Final Certificate shall have effect as conclusive evidence as provided in clause 1.9.1 save only in respect of the matters to which those proceedings relate.’
The question is can a party once having commenced litigation within the 28 day period then later commence adjudication proceedings after the 28 day period? The short answer is yes but the ‘conclusive evidence’ clause would bite in any proceeding commenced after the 28 day period.
The most recent case on this matter is The Trustees of the Marc Gilbard 2009 Settlement Trust v OC Developments and Projects Limited. The court gave judgment that it was wholly contrary to the conclusivity provisions in the contract to interpret clause 1.9.3 as meaning that once any type of proceedings had been started within the 28 day period the Final Certificate became inconclusive in relation to the subject matter of those proceedings in any other proceedings commenced after the 28 day period. The net effect is that one could still commence adjudication after the 28 day period but such proceedings could not circumscribe the effect of clause 1.9.3.