and/or 9(5), it lost any entitlement to an extension of time for delay which ought to have been notified. The claimant was then entitled to recover, or to deduct from any amount otherwise payable to the defendant, such amount of its loss and damage resulting from such delay as it should bona fide estimate. Further that such estimate was binding and conclusive upon the defendant until the amount of its loss or damage was finally determined or agreed between the parties. Finally, that ‘final determination’ meant final determination under the final account provisions of the subcontract, as opposed to final determination by the court or any adjudicator. The short answer to the first of these arguments was that this was not a point of contract construction. Instead the claimant was inviting the court to conclude that it was “unarguable on the evidence put before the adjudicator and now before the court that no required notifications were given”. Looking at the facts, at least one notification of several causes had been given in time and it was impossible to conclude that the claimant had given proper consideration or effect to all the causes notified. It could not be said that the timely notification “was wholly ineffective in relation to all of the causes of delay to which it referred.” Having thus determined the first issue, there was no need to decide the second issue namely that the claimant's bona fide estimate was binding and conclusive until determined at the final account stage of the subcontract, because success on that issue alone would not get the claimant home. However, the court was persuaded to give its view. The first problem for the claimant was that whilst it was clear what “final agreement” meant, it was not clear what was
intended by the words “final determination” i.e. by whom, at what stage, and indeed in relation to what matters? The final matter was whether the court should make any findings as to the ambit or scope of the decision and make alternative declarations to the specific declarations sought. The court looked at each of the specific declaration sought and whether it might make alternative declarations. The adjudicator had decided that "a fair and reasonable time" for completion of the subcontract works was 22 October 2018. That decision was not final in relation to the subcontract generally. However, as the adjudicator determined this not only in the limited context of the defendant's application number 35, but also in its own right, the decision was not irrelevant for the purposes of the final determination of the amount of the loss and damage suffered by the claimant, as that phrase was used in clause 9(8). It would be open to either party to refer a dispute as to such final determination to adjudication, notwithstanding the terms of the existing decision. In the meantime the adjudicator's decision was binding as to the date for completion until the court made a final determination of that issue. It was plain from the notice of adjudication and referral that the defendant was seeking the adjudicator's decision as to what extension of time the defendant was entitled to; and that the claimant chose to waive any argument that the adjudicator did not have jurisdiction to determine that issue. That issue was separate and distinct from the further and separate issue as to the validity and correctness of the bona fide estimate of loss and damage.
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