(3) The position pending future final determination
Comment
However the court went on to deal with a second difficulty arising from the existing Sheriff action which had been commenced in time and where the correctness of the FC would be determined. Given that the FC was under challenge in those proceedings it was not open to a party to take proceedings to recover payment outside the time limit and contend that the FC was conclusive in order seek relief in the meantime. The Council could not look to recover payment in reliance on the FC in the current proceedings, while the wider issue of the sum due under the FC was pending in the Sheriff Court. Nothing in clause 1.9 indicated that the FC had this effect. Coulson J had expressed a similar view in Trees Marc Gilbard 2009 Settlement Trust v OD Developments and Projects Ltd [9].
The court stated that in order to avoid the conclusive effect of the final certificate a party should not only commence adjudication proceedings but should also issue protective court or arbitration proceedings to ensure it preserved its rights of challenge.
(4) The validity of the interim payment notice
This issue had been decided by the adjudicator. The Council had failed to challenge that finding within 28 days of the decision and it was now final. Had the court the power to look at the issue it would have found that if the due date stated in the notice had been wrong, as the Council alleged, the notice would have been invalid. It was the duty of the party giving a payment notice to ensure it complied with the Contract in all its particulars.
(5) Interest
The question of interest was part of the decision. Had the counterclaim succeeded, it would have been wrong for DMS to retain the interest and the court would have allowed its recovery.
[9] [2015] ConLR 150
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